Recent Court Decisions of Interest to Local Governments

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2026

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City Charter Amendment

Whether the provision in RCW 35.22.120 that city charter amendments shall be submitted to the voters at the “next regular municipal election” refers only to general elections or also include special elections.

A Better Richland v. Chilton (1/29/2026) – In October 2024, A Better Richland (ABR) (a political action committee formed with the purpose of enacting a charter amendment by citizen petition pursuant to RCW 35.22.120) submitted a petition for a charter amendment to the county auditor. The auditor determined the amendment should be placed on the ballot for the next “general election,” scheduled for November 4, 2025. ABR argued it should be placed on the ballot for the next “special” election, in February or April 2025. ABR petitioned the trial court for a writ of mandamus directing the county auditor to place the amendment on the ballot to be voted on at the special election. The court denied the writ, and ABR sought direct review at the Washington State Supreme Court. While the court held the case is now moot and should be dismissed, they held that an exception to mootness applies and addressed the proper interpretation of the statute as an issue of continuing and substantial public interest. The majority view of the court held that the phrase “next regular election” under RCW 35.22.120 can include both general and special elections.

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2025

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Public Records Act

Whether a private nonprofit that manages the city’s Metropolitan Improvement District is subject to the Public Records Act.

Horvath v. DBIA Services DBA Metropolitan Improvement District (12/18/2025) – This matter addressed whether a private nonprofit, DBIA, a subsidiary of the private nonprofit Downtown Seattle Association is the functional equivalent of a government agency and thus subject to the Public Records Act (PRA). The Metropolitan Improvement District contracted with DBIA to manage district operations and services, including cleaning and maintenance, community service, welfare checks, and public safety. Most of DBIA’s budget comes from assessments imposed on local property owners under the city’s ordinance. 

The court applied the Telford balancing factors as follows to hold that DBIA is the functional equivalent of a government agency and is subject to the PRA:

• Weighs in favor of concluding DBIA is the functional equivalent:
  • Governmental Function: At least some of the services DBIA provides (e.g., public safety and sanitation) support the peace, security, health and general welfare of the city and thus are core governmental functions.
  • Government Funding: About 93% of DBIA’s funding is from assessments imposed by ordinance. 
• Weighs against concluding DBIA is the functional equivalent:
  • Government Involvement: The city is not involved in day-to-day operations and is merely regulating (supporting the private entity’s status). 
  • Government Creation: The government did not create DBIA.

The court determined that providing DBIA with immunity from the PRA would “frustrate the goal of government transparency.”

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Recall

To proceed, recall petitions must be legally and factually sufficient.

In re Petition for Recall of Commissioner Lisa Olsen (12/4/2025) – A recall petition was filed against Pacific County Commissioner Lisa Olsen for: (1) not having legal counsel present when attending executive sessions pursuant to RCW 42.30.110(1)(i) (to discuss with legal counsel litigation or potential litigation); and (2) intentional disregard of public input and misrepresenting of the commission’s decision-making process (asserting the commissions held a private meeting, did not allow public discussion, and claimed a decision had been made in advance). The superior court held that the charges were sufficient to show an Open Public Meetings Act (OPMA) violation. 

The Supreme Court reversed, holding that, with regard to Charge 1, while the meeting minutes did not list legal counsel on the list of attendees (legal counsel is required for an executive session under RCW 42.30.110(1)(i)), the petitioner failed to provide evidence that the commissioner acted with the intent to violate the OPMA. With regard to Charge 2, the Supreme Court held that the allegations lacked the required specificity for a recall charge. 

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Inverse condemnation

A private property owner is barred from making an inverse condemnation when the subsequent purchaser doctrine applies. 

Stephens v. Town of Steilacoom (10/14/2025) – This matter involved property owners’ disturbance of a wetland on their private property without a proper permit. A stop work order was issued by the Town after the property owners (the Stephens) cleared and filled portions of their property, which the Town cited as unlawful clearing of a regulated wetland. The Stephens sued the Town, primarily pursuing an inverse condemnation claim (that the Town took or damaged their private property for public use without just compensation). The trial court ruled in favor of the Town. 

On appeal, the plaintiffs claimed that the trial court erred by concluding their inverse condemnation claims was barred by the subsequent purchaser doctrine. Under the subsequent purchaser doctrine, a subsequent purchaser is prohibited “from asserting the legal rights of the owner at the time of the alleged taking.” The court held that the Stephens lacked standing because the alleged conduct of the Town involving the wetland occurred before the Stephens purchased the property and because the wetland conditions predated the Stephens’ purchase of the property. The court dismissed the Stephens’ arguments that they did not have notice of the wetland and that the court should recognize a latent condition exception. The court also rejected the Stephens’ tort claims, holding that the tort claims were subsumed by the inverse condemnation claim. 

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Recall

Confirming that recall petitions must be filed not less than six months before the next general election.

In re Recall of Ruelas (7/31/2025) – Involved Mayor Ruelas’ appeal from a superior court order upholding two recall charges against her. The court dismissed the appeal and remanded to the trial court with instructions to dismiss the recall petition as moot because: (1) Mayor Ruelas filed to run for reelection, with the election occurring in November 2025; (2) RCW 29A.56.150(1) requires sponsors of a recall file petition not less than six months before the election; and (3) the current election is less than six months from the date of the decision. Therefore, even if the court affirmed the superior court, the recall sponsors would be unable to comply with the statutory time requirement for gathering signatures and the recall issue would not be on the ballot.

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Standing

Counties have standing to challenge State’s funding of criminal defense.

WSAC v. State (7/22/2025) – Involved a constitutional challenge to the way criminal defense for indigent defendants is funded by the State. The State of Washington pays for a small percentage of the costs and the counties pay the remainder; the counties sought a permanent injunction that would require the State to provide adequate funding. The case addressed whether the counties have standing to bring their claims.  

After a lengthy analysis, the court of appeals held the counties did have standing, because: (1) they are within the zone of interest (e.g., interest in ensuring the integrity of the legal system, duty to safeguard defendants’ right to a fair trial and right to counsel, unique insight into how the current system impacts public defender caseloads, county budgets, etc.); and (2) they have shown sufficient injury in fact (e.g., the system’s financial constraints have directly harmed its ability to meet its constitutional duty to provide indigent defense and inadequate funding has led to disparities in providing adequate indigent defense among counties. In addition, the court noted that their standing conclusion is supported by the fact that adequate funding for indigent defense is an issue of substantial importance. The matter was remanded to the trial court for further proceedings.

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Military Leave

An employee is entitled to paid military leave for days the employee would have been expected to work, if not for their military service.

Bearden v. City of Ocean Shores (6/26/2025) – Addressed whether an employee is entitled to paid military leave even if they are not “scheduled to work” by the employer due to the length of their absence for military service. The employee in this case worked for the city and was a member of the reserves. At issue in the case was the employee’s three separate leaves: (1) October 16, 2019-October 30, 2019; (2) November 5, 2019-August 27, 2020; and (3) August 2020-May 2021. He received paid military leave for the first and second leaves, but the city did not provide paid military leave for the third leave because he was no longer in the reserves and was on deployment, and because he had no scheduled work shifts during that time.

The law entitles employees to military leave of absence from employment for up to 21 days during each year; employees are paid their normal pay during the military leave and are charged leave only for those days they are scheduled to work for the public employer. See RCW 35.40.060.

The court concluded: (1) employees are entitled to military leave, regardless of which branch of the military they service or their status in with the armed forces – it applies to employees who are the reserves, actively deployed, in training, or assigned to drills; and (2) the leave is provided each military fiscal year, which begins October 1 and ends the following September 30, and is not affected by the overall duration of the leave.

Notably, the court also held that the term “scheduled to work,” when read in context with the text of the entire statute, means days that the employee would have been expected to work, if not for their military service (and not days they were literally on the work schedule).

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Negligence

Negligent retention claim is superfluous to a vicarious liability claim when an employer concedes an employee is acting within the scope of employment.

Earl v. City of Tacoma (6/17/2025) – Involved a fatal incident where the girlfriend of the suspect was killed by Tacoma police during a confrontation in a vehicle. The certified question in the case was whether a negligent retention claim can be brought if the city conceded its employee was acting within the scope of his employment and that it is vicariously liable for any negligence. Because the scope of employment question was not contested, the court concluded “no,” stating:

We hold that a claim for negligent retention is redundant and not actionable in cases where the following two factors are present: (1) the plaintiff brings a negligence claim against an employee as well as a vicarious liability claim against the employer, and (2) there is no genuine issue of material fact that the employee acted within the scope of employment in the commission of the allegedly negligent act (either because the employer admits the employee acted within the scope of employment or a reasonable fact finder could reach but one answer to this question).

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Land Use Petition Act (LUPA)

Approval of plat applications is dependent on compliance with development regulations, not the comprehensive plan.

Fall City Sustainable Growth v. King County, et. al. (5/19/2025) – Involved an appeal of the county’s approval of three preliminary residential plat applications in unincorporated Fall City. The county’s hearing examiner approved the plat applications, finding them to be inconsistent with the comprehensive plan’s protection of rural character but consistent with the development code. The appellants argued that state law and the county code required plat applications be denied if they are not consistent with all elements of a comprehensive plan. The county disagreed, arguing that projects are reviewed for compliance with applicable development regulations, not with comprehensive plans. The Court of Appeals, Division 1, agreed with the county, holding that the hearing examiner did not err in approving plat applications that did not comply with the comprehensive plan (under the hearing examiner’s interpretation), but did comply with the development regulations.

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Open Public Meetings Act (OPMA)

It is a violation of the OPMA for a legislative body to take final action on a matter that was not listed in a special meeting notice.

McFarland v. Tompkins (4/24/2025) – Addressed numerous OPMA matters. At their January 4, 2021, meeting, the Walla Walla County Board of Commissioners (BOC) agreed to send a letter of support for We are Liberty, a group lobbying to limit the governor’s powers. On January 5, 2021, the county posted notice of a special meeting on January 7 to hold an executive session to discuss litigation or potential litigation and to “discuss miscellaneous business to come before the Board.” Petitioner McFarland asked the clerk and the chairman whether the topic of a letter supporting We are Liberty would be discussed. The clerk and the chairman did not indicate whether the BOC would discuss the proposed letter. After the executive session on January 7, the BOCC returned to open session and approved drafting a letter to the governor and to state legislators regarding the governor’s powers.

McFarland alleged an OPMA violation because the notice for the January 7 special meeting did not specify the business to be conducted and requested the letters be deemed void. The court agreed that the county had violated the OPMA by failing to include the letter approval in the special meeting notice. After a lengthy analysis, the court also concluded that McFarland had standing to seek nullification of the action to approve the letters. The court next concluded that, because the board members acted on behalf of Walla Walla County and the letters were an official act on behalf of the county, the county is a proper defendant to the claim seeking nullification. The court also addressed mootness, laches, finding both in favor of McFarland, and remanded the issue of whether the commissioners knowingly violated the OPMA and, if so, whether to impose civil penalties.

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Open Public Meetings Act (OPMA)

It was a violation of the OPMA for the city council to decide in executive session to move forward with one candidate for the city manager position; the vote to select the final candidate should have occurred in open session.

West v. Walla Walla City Council (4/21/2025) – This case involved an alleged OPMA violation. The city published a special meeting notice that the city council would be holding an executive session on November 18 “[t]o evaluate the qualifications of an applicant for public employment or to review the performance of a public employee pursuant to RCW 42.30.110(1)(g)” followed by an open session to “[v]ote to select 5 finalists for the position of City Manager.” However, after the council emerged from the executive session, the mayor indicated that “[t]he council is unanimously of the opinion that of the eight semifinalists, that one of them […] is […] superior to the other applicants.” He then indicated they would begin negotiations with that candidate. The council unanimously approved a motion to move forward with negotiations and an offer for the candidate.

At their December 2 meeting, the council passed the mayor’s motion to “reconsider” the action taken at the November 18 meeting. One of the councilmembers stated that he believed the council violated the OPMA (unintentionally). On December 21, the council approved the employment agreement and hired the selected person as city manager. On February 24, West sued the council alleging the council violated the OPMA.

The superior court ruled that West’s complaint was barred by laches and his claims for declaratory and injunctive relief were moot. The court also found no OPMA violation. The court of appeals disagreed in part, holding:

1. West's claims were not barred by the doctrine of laches (an implied waiver arising from knowledge of existing conditions and acquiescence in them). Here, while the city manager had been working for two months before West filed suit, West was well within the two-year statute of limitations for OPMA claims, the brief delay in filing suit was not “highly unusual” and did not increase any penalties or costs arising from the OPMA violation, and the council's corrective action did not justify application of the doctrine of laches to bar West’s suit on equitable grounds.
2. West's claim for injunctive relief is moot, but his claim for declaratory judgment that the council violated the OPMA is not moot. The council violated the OPMA at its November 18 meeting (when it failed to conduct the vote to select five finalists in open session and instead moved forward with an agreed-upon candidate) and partial summary judgement for West was appropriate.

The matter was remanded to the trial court to determine whether the council knowingly violated the OPMA and, if so, to award civil penalties and costs.

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Initiative Powers

A local initiative that expanded the city’s criminalization of camping fell outside of the local initiative power because it was impermissibly administrative rather than permissibly legislative.

Jewels Helping Hands v. Hansen (4/17/2025) – The question presented in this case was whether there is room for the people of Spokane to legislate one aspect of the housing crisis directly through the initiative process. The city of Spokane’s ordinance regulating camping in public areas did not criminalize camping on public property (except in certain sensitive areas) if no shelter space was available. City resident Hansen proposed an initiative to expand Spokane’s criminalization of camping; the initiative banned camping in areas within 1,000 feet of a school, park or childcare facility, irrespective of the availability of shelter space. The initiative went to the ballot and passed.

On appeal, the court noted a local initiative will exceed its proper scope if it is “administrative” rather than “legislative” in nature. The court held the initiative in this case was administrative and exceeded the local initiative power because it “tinkers with the administration of a previously adopted plan” and hinders that plan adopted by the local government. The test for determining whether an initiative is impermissibly administrative or permissibly legislative applies only to highly regulated utilities or programs. Spokane’s camping ordinance qualifies as a highly regulated program, with its detailed regulatory scheme implementing difficult policy choices.

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Public Records Act (PRA)

RCW 50B.04.170(1) exempts personal information of those individuals who apply for an exemption from the WA Cares Fund.

Pilloud v. ESD (4/1/2025) – Held that personal information of applicants for exemption from the WA Cares Fund is exempt under RCW 50B.04.170(1) because the information is used in assessing premiums and determining eligibility for benefits. In response to a request for those who were exempt from the fund, the Employment Security Department (ESD) produced a record with all personal information redacted, relying on RCW 50B.04.170(1), which states, “Any information or records concerning an individual or employer obtained by [ESD] for the purposes of collecting and assessing employee premiums […] and determining qualified applicants […] will be considered private and confidential […].” Since this is precisely how ESD uses the information, the individuals’ personal information was exempt. The court also addressed whether ESD provided a timely response, as it did not respond within five days because the request was in ESD’s junk email folder. Reiterating that the PRA does not provide a freestanding penalty for procedural violations (only for final action denying record), that ESD did not deny access to records and that the petitioner was not an attorney (and not entitled to attorney fees), the court concluded the issue was moot. The court also dismissed arguments that there was constructive denial of the records and silent withholding.

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Recall

Only legal voters in a political subdivision have standing to seek recall of elected public officers in that political subdivision.

In re Recall of Suggs (3/27/2025) – The question in this case was whether any legal voter of the state may petition to recall a public officer of any political subdivision or whether the voter must be a voter within the relevant political subdivision. The Court held that Article I, section 33 of the state constitution allows only legal voters in the political subdivision from which a public official was elected to seek recall of that public official. This standing requirement is consistent with the principle that elective public officers must be accountable to their constituents.

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Recall

Courts must accelerate review of recall petitions; a party’s failure to meet extended court deadlines in a recall case can result in dismissal for failure to prosecute because it prevents the court from timely disposition of the case.

In re Recall of Ruelas (3/27/2025) – The case involved the Washington Supreme Court’s consideration of a recall petitioner’s motion to dismiss a recall appeal based on failure to prosecute. This case involved a mayor’s appeal of a superior court’s decision that recall charges were factually sufficient to go to the voters. While the mayor filed a timely appeal, she failed to meet numerous other filing deadlines, even after being granted extensions. The Court granted to motion to dismiss for failure to prosecute given that it impacted the Court from timely disposing of the case.

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Elections

Signature verification requirements for ballots, at least when coupled with an expansive system to cure a rejected ballot, do not violate the state constitution.

Vet Voice Foundation v. Hobbs (3/6/2025) – Addressed whether it violates the state constitution for election workers to rely on signature verification to reject a ballot.

When an election worker cannot verify a signature, they must contact the voter and give them an opportunity to cure their ballot. The ballot can be cured by returning a signature update form or by a ballot declaration. If cure does not occur in a time, the ballot is rejected.

After considering various constitutional challenges, the court concluded that, when coupled with the increasingly expansive opportunities to cure a rejected ballot, the signature verification requirement, on its face, does not violate the state constitution.  (Note: after the case was filed, the legislature directed election workers to adopt new best practices that: (1) require election workers to try to cure signature issues by contacting voters by telephone, email and text message whenever possible; (2) encourage county auditors to contact each registered vote and obtain an updated signature; and (3) require county auditors to develop a community outreach plan to educate voters about signature verification requirements.)

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Public Records Act (PRA)

A closing letter inviting the requestor to contact the agency if the requestor believes records are missing is not a request for clarification that protects the agency from liability.

Hood v. Vancouver (3/4/2025) – Involved a PRA request for records related to the state audit of the city’s downtown revitalization authority (DRA). The court first held that a portion of Hood’s request was ambiguous (i.e., whether the request for DRA’s “response to the audit or to the audit report” encompassed communications to the audit related to the stages of the audit before the final audit report). The court next discussed the agency’s letter that closed the request and invited the requestor to contact the agency if they believed documents were missing or if they would like additional documents. The court held the agency’s closing letter language did not qualify as a request for clarification and did not prevent liability for inadequate search if the requestor did not respond. The court then remanded the matter to determine whether the city performed an adequate search, because email records should have been included in the response if they existed.

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Public Records Act (PRA)

Seattle police officers who attended a highly publicized rally in public did not demonstrate sufficient privacy rights under the PRA or the First Amendment in order to withhold their names from public records showing they attended the rally.

Does v. Seattle Police Department (2/13/2025) – Six officers from the Seattle Police Department (SPD) attended the event in Washington DC on January 6, 2021, relating to the results of the 2020 presidential election. After discovering their involvement, the Office of Police Accountability (OPD) investigated whether the officers violated the law or SPD policies. The OPD investigation did not find any misconduct from the actions of John Does 1, 2, 4 and 5.

SPD received several requests for public records related to any SPD officers who participated in the events in Washington, DC, on January 6th. SPD notified the officers that it intended to produce the records in full as no exemption applied. 

The officers anonymously sued SPD as John Does 1, 2, 4, and 5 seeking an injunction to prevent the release of their identities, arguing their identities should be exempt based on statutory and constitutional privacy rights. 

The Supreme Court first confirmed that the two-part injunction standard applies; a party seeking an injunction must show that the records are exempt and that disclosure would clearly not be in the public interest and would substantially and irreparably damage a person or governmental function.

With regard to the first part of the test – whether an exemption applies – the officers argued their identities should be exempt either under RCW 42.56.230(3) (private personal information) or under the First Amendment, as an “other statute” that prohibits disclosure under RCW 42.56.070(1).

The Supreme Court held that RCW 42.56.230(3) did not apply as the officers failed to show a right to privacy in their attendance at a highly public event, noting:

The actions a person takes in public are not the kind of information typically considered the sort of intimate details in one’s personal life that one “‘does not expose to the public eye.’”

The Supreme Court further held that the officers failed to show a constitutional privacy interest in their identities as the subjects of these particular public records. While the Court recognized the officers’ right to engage in political expression and attend the rally, “it does not necessarily follow that the fact of their attendance at such an event is private under the First Amendment.” As well, the Court noted they did nothing to hide their identities while attending the rally and, while political beliefs may be personally held in general, they made the choice to attend this highly public event. 

Finally, the Court held the officers did not demonstrate a need to litigate under pseudonym. The Court remanded the matter to the trial court for further proceedings.

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2024

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Public Records Act (PRA)

An agency is not required to conduct a forensic search of a personal device or account to respond to a public records request; the agency can rely on a Nissen affidavit of officials and employees that they conducted an adequate search and provided responsive records.

Valderrama v. City of Sammamish (12/16/2024) – This case addressed whether the city performed an adequate search of records located on private devices. A former councilmember submitted several records requests for communications on councilmembers’ personal phones and accounts. The city asked the councilmembers to search their personal devices and accounts. It then produced responsive records in installments and secured Nissen affidavits.

The court of appeals confirmed that the city’s search was adequate, reiterating the Nissen (2015) court decision in stating that the court must “interpret the PRA to balance the employee’s privacy rights with the public’s interest in government accountability,” that the employees are responsible for searching their personal devices, and that the agency can satisfy its burden to show it conducted an adequate search for records by submitting Nissen affidavits. An agency’s affidavits are entitled to a presumption of good faith.

Here, although the petitioner claimed the councilmembers signed their affidavits and deleted responsive records in bad faith, he failed to show evidence of bad faith. The court rejected the petitioner’s argument that the city had an obligation to forensically search the councilmember’s personal device. Citing to Nissen, the court noted this infringement on employees’ privacy rights is unnecessary to conduct an adequate search.

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Public Duty Doctrine

A common law duty of care arises when a city responds to a 911 call, and the voluntary rescue doctrine does not limit the city’s liability.

Norg v. City of Seattle (11/25/2024) (Norg II) (unpublished opinion) – The Washington Court of Appeals clarified a previous decision of the Washington State Supreme Court (Norg v. City of Seattle (2023) (Norg I)) on the issue of municipal liability. In Norg I, the Washington Supreme Court ruled that the public duty doctrine does not apply when the alleged breach is based on common law duties instead of duties imposed by statute or ordinance. The court found that a common law duty arose when the dispatcher assured the plaintiffs that the units were on the way. 

In Norg II, the court of appeals rejected the city’s argument that the city did not have a legal duty to the Norgs under the voluntary rescue doctrine. The voluntary rescue doctrine acknowledges that a person does not normally have a duty to rescue another, but if the person does rescue, they must exercise reasonable care in doing so. The city’s argument was that the doctrine limited a rescuer’s liability. The court rejected that argument, saying that “it merely sets forth the test for determining whether a party’s voluntary undertaking gives rise to a duty to exercise reasonable care in the performance of the undertaking.”

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Civil Forfeiture

A court’s sentencing condition that requires a forfeiture must be based on statutory authorization.

State v. Richards (11/21/2024) – The Washington Supreme Court held that a district court’s sentencing condition requiring the defendant’s agreeing to forfeit personal property was not supported by any statutory authorization.

Defendant Richards owned a dog that had been declared a dangerous dog. Richards was convicted under county law of having a “dangerous dog at large.” The county agreed that any sentence could be suspended if Richards surrendered the dog to the Humane Society, which would then euthanize it. The court held that the surrender condition operated as a criminal forfeiture that must be supported by statutory authority. In this case, the county code provided for a civil or administrative forfeiture, but not a criminal forfeiture.

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Disclosure of Unauthorized Personal Health Information

The health district had a duty to use reasonable care in collecting and storing personal health information of patients, including a duty to take reasonable steps to prevent unauthorized access and disclosure of the information.

Nunley v. Chelan-Douglas County Health District (10/31/2024) – This case involved unauthorized disclosure of patients’ personal identifiable information (PII) and personal health information (PHI) due to a cyberattack. While the health district was aware that its stored PII and PHI were vulnerable to a data breach and that its security protocols were inadequate, it failed to take steps to improve its security measures. A data breach occurred, affecting the PII and PHI of over 100,000 individuals in Washington State. Two affected individuals brought a cause of action for negligence.

The court of appeals held that the health district owed the plaintiffs a duty to use reasonable care in the collection and storing of their PII and PHI, and this duty includes taking reasonable steps to prevent unauthorized access and disclosure of the information. The court further held that the plaintiffs had asserted cognizable injuries at the preliminary stage and remanded for further proceedings.

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Incompatible Offices

The position of a county planning commissioner is considered an office, subject to the state's dual office prohibition.

U.S. Sportsmen’s Alliance Foundation v. Smith (10/17/2024) – This case analyzed whether an individual could simultaneously serve as an appointed member of the Washington Fish and Wildlife (WFW) Commission and as an appointed member of the Jefferson County Planning Commission. RCW 77.04.040 prohibits appointed members of the WFW Commission from also holding another state, county or municipal elective or appointive office. The question presented was whether the county planning commission position is an “office” subject to the statute's dual office prohibition.

The court looked to the ordinary meaning of the word “office” as derived from dictionaries to ascertain legislative intent and defined RCW 77.04.040’s “office” to mean a position of authority, duty, or responsibility conferred by a governmental authority for a public purpose or to exercise a public function. The court rejected the appellant’s assertion that the court should instead define the term by looking at the related terms of “public office” and “civil office” in the constitutional context. Instead, based on the statutory definition in RCW 77.04.040, the court concluded that the planning commission position is an “office” and the individual could not serve simultaneously as both a WFW commissioner and a county planning commissioner.

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Public Records Act (PRA)

School district violated the PRA when it withheld unredacted surveillance videos from the parent of a student who appeared in the videos, claiming they were exempt under FERPA. 

C.S.A. v. Bellevue School District No. 405 (10/14/2024) – Applying a 2017 guidance letter from the Department of Education (DOE) on the application of the Family Educational Rights and Privacy Act (FERPA) to a school district's obligations related to inspecting and reviewing videos that amount to "education records," the court concluded that FERPA does not prevent disclosure of unredacted surveillance video to a parent seeking their child’s education records even if the video is also considered the education records of another student if redaction would “destroy the meaning” of the video. 

As the court explained: 

If an education record contains protected information of more than one student, a parent may generally inspect and review the specific information about only his or her own child. 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.12(a). But a parent may review their child's education record, even if it contains information that is also directly related to another student, "if the information cannot be segregated and redacted without destroying its meaning." 73 Fed. Reg. 74,832-33 (2008).

Because FERPA would not prevent disclosure to this particular requestor on these facts, the school district could not rely on FERPA as an “other statute” exemption to the PRA.

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Land Use Petition Act (LUPA)

Cancellation of a land use application is a final decision under LUPA, the three day tolling period applicable to postal mailings also applies to email, and an employee can serve as an unwitting process server when they receive LUPA documents and then cause the city clerk to report to the office and take possession and control of the documents.

Chandrruangphen v. City of Sammamish (10/7/2024) – This case involved timely service of a LUPA petition. The land use decision at issue was the city’s cancellation of an application of a plat alteration to remove the nonbuild status for a property. The application was filed in 2019 by a previous homeowner; the petitioner purchased the property in 2022 and succeeded the previous homeowner as the applicant. After many years of back-and-forth and a fifth review letter sent by the city seeking expert reports and analysis accompanied by a six-month extension to file the materials, the city emailed a letter dated May 3, 2023, cancelling the application for inactivity and failure to submit requested information.

On May 24, 2023, a process server delivered the summons and LUPA petition to an office assistant at the front desk of the Sammamish City Hall building. The city clerk was working from home that day; after notification, she came to the office, initialed the documents, and noted that they included a LUPA petition and summons. On May 26, 2023, the city confirmed with the petitioner’s law firm that it had received the petition and given them to the hearing examiner clerk. On June 1, 2023, the process server served the summons and petition on the city manager.

The court held the cancellation was a final land use decision and LUPA review was appropriate. The court further held that the city is deemed to have issued its decision on May 11, 2023 (because a three-day tolling period is equally applicable to postal mailings and email) and that the June 1 service on the city manager was timely.

The court further held that the May 23 service also satisfied the personal service requirement within the LUPA time limits. Although the city clerk was not present and not available to receive service during normal office hours, the office assistant became the unwitting process server (although he was not authorized to receive service on behalf of the city, he met the qualifications to serve process).

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State Environmental Policy Act (SEPA)

Zoning changes to allow accessory uses in agricultural zones require a comprehensive SEPA review.

King County v. Friends of Sammamish Valley (9/19/2024) – The Washington State Supreme Court reversed a court of appeals (CoA) decision (King County v. Friends of Sammamish Valley (2023)). The CoA had reversed a Growth Management Hearings Board decision invalidating a city ordinance because the ordinance did not properly consider potential environmental impacts. The Supreme Court re-instated the Board’s decision, finding that the Board did establish sufficient facts showing that the County failed to consider potential environmental impacts in its SEPA checklist.

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Condemnation Authority

A city’s authority to condemn private property for stormwater management is not divested if a project also has a fish passage component (as long as appropriate funding is used for each part of the project.)

City of Sammamish v. Titcomb (9/12/2024) – The City of Sammamish authorized condemnation of water rights. The ordinance authorizing the condemnation listed the purposes for the condemnation as reducing and eliminating storm drainage conveyance system capacity issues, improving traffic safety, providing flood protection, and removing barriers to fish passage. A property owner challenged the condemnation, claiming that the salmon recovery act (SRA), chapter 77.85 RCW did not authorize condemnation for fish passage. 

The Washington Supreme Court, agreeing with the court of appeals, held that the SRA only means that funds granted under that Act cannot be used for condemnation. But the court said that this does not mean that condemnation was not available for the other purposes listed in the condemnation ordinance. 

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“Rule-Making” / Administrative Procedure Act (APA)

Department of Ecology’s written commitment to use the individual permitting process to maintain nitrogen discharges into Puget Sound at current levels is not a “rule” for purposes of the APA.

City of Tacoma v. Department of Ecology (9/5/2024) – The Washington State Supreme Court determined that a commitment to use the individual permitting process under the National Pollutant Discharge Elimination System (NPDES) was not “rule-making” for purposes of the Administrative Procedure Act (APA) as defined by RCW 34.05.010(16).   

In late 2018, Northwest Environmental Advocates (NWEA) petitioned the Department of Ecology (Ecology) to include nitrogen discharge limits in their regulations. Ecology denied NWEA’s petition, and in the denial letter, Ecology made a commitment to NWEA that it “will, through the individual permitting process […] [s]et nutrient loading limits at current levels from all permitted dischargers in Puget Sound […]” NWEA sued. The lower courts both held that Ecology’s commitment in the denial letter amounted to a “rule” under the APA and that it was adopted without following statutory rule-making procedures. 

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Recall

Recall petitions require more than a simple belief that the charges are true; the actions must clearly amount to misfeasance, malfeasance, or violations of the oath of office.

In the Matter of the Recall of Weyrich (8/29/2024) – Involved a recall petition of the Skagit County prosecuting attorney, the auditor and the sheriff. The trial court found the charges to be legally and factually insufficient, and the petitioner appealed. The Supreme Court reviewed the charges against all three officials, including: (1) performing official duties without depositing or renewing their official bonds; (2) taking the oath of office before posting the required bond; (3) misappropriation of public funds; (4) violation of election laws and the Open Public Meetings Act. The Court affirmed the trial court’s decision, finding that the claims did not rise to the level of misfeasance, malfeasance, or violation of the oath of office necessary for a recall.

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Recall

A defendant in a recall petition is only owned attorney fees if the petitioner filed the recall petition in bad faith.

In the Matter of the Recall of Kinney (8/27/2024) – Involved recall petitions filed against four commissioners of the Bainbridge Island Metropolitan Park & Recreation District. The recall petition was dismissed and the commissioners sought attorney fees, claiming the petitions were filed in bad faith. The court denied the claim for attorney fees, finding the petitioner was not acting in bad faith as he had a sincere belief in his claims that the commissioners were not fulfilling their duties.

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Collective Bargaining

The arbitration clause in a collective bargaining agreement (CBA) only applies to disputes over the terms of the CBA, not to disputes over the terms of a separate benefit plan, even though the government agreed to abide by the terms of the separate benefit plan in the CBA.

Service Employees International Union Healthcare v. Snohomish County Hospital District (8/19/2024) – This case involved a claim by the Service Employees International Union Healthcare 1199NW (Union) that the Snohomish County Public Hospital District No. 1 (Evergreen) breached the terms of a 401(a) retirement plan. Evergreen contended that because it agreed in a collective bargaining agreement (CBA) to abide by the terms of the retirement plan, that a claim that it breached the retirement plan is really a claim that it breached the CBA, and therefore is subject to the CBA’s arbitration clause. The trial court agreed that arbitration was required.

The court of appeals reversed, as follows:

• The Union based its claims on only an alleged breach of the retirement plan, not an alleged breach of the CBAs. The claim requires an interpretation of the retirement plan’s terms, not the CBA’s terms.
• The CBA’s arbitration clause is limited to covering alleged breaches of the CBA’s terms. Evergreen’s agreement in the CBA to follow the terms of a separate benefit plan doesn’t bring disputes arising under the benefit plan within the scope of the CBA’s arbitration clause.

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Local Improvement District Assessments

The city’s methodology for establishing LID assessments was proper.

SHG Garage v. City of Seattle (8/5/2024) – This case involved challenges to the assessments charged to property owners located in a Local Improvement District (LID) who were deemed to receive a “special benefit” from the improvements. The property owners argued that the method of assessment was founded on a fundamentally wrong basis, and the trial court agreed, nullifying the assessments.

On appeal, the court of appeals disagreed, holding that the city’s LID assessment methodology was proper. Notably, the court found that cities are afforded significant deference when assessing properties within an LID and that property owners must show with concrete evidence that the properties are not benefited. The court further held that: (1) neither state nor local law required the appraisals that formed the basis of the assessments be completed at a certain date; (2) that the city council properly treated the LID improvements as one continuous improvement because it found that all property within the LID will benefit from the improvements as a whole; and (3) the city council has the authority to delegate appeals of a hearing examiner’s final decision to a council committee and doesn’t need to independently review the appeals.

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Residential Landlord-Tenant Act

The state’s Residential Landlord-Tenant Act preempted a conflicting local ordinance that provided stricter provisions for just cause eviction.

Valley Cities Counseling and Consultation v. Eddines (8/5/2024) – This is a preemption case involving a city ordinance that conflicted with the state law. The Landlord-Tenant Act prohibits residential landlords from evicting a tenant except in enumerated circumstances that constitute just cause, including when the tenant has completed an educational training or service program and is no longer eligible to participate in the transitional housing program. Auburn’s ordinance contained a similar just cause restriction, but it removed the transitional housing exception. The plaintiff (who was the evicted tenant and had been given notice that his tenancy would terminate as he was no longer eligible for the transitional housing program) argued he should not be evicted under the Auburn ordinance, and that state preemption didn’t apply for several reasons. The appellate court disagreed, holding: (1) a categorical conflict exists, as the state law indicates, “this is permitted” and the Auburn ordinance says, “this is forbidden,” (2) the Landlord-Tenant Act creates an affirmative right that conflicts with local law; and (3) the Legislature did not intend to authorize local governments to provide additional protections for tenants that would render state law meaningless.

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Employment Discrimination

Washington Law Against Discrimination (WLAD) required employer to reasonably accommodate employee who wanted certain days off to observe a weekly Sabbath and attend religious festivals. 

Suarez v. State (7/25/2024) – The Washington Supreme Court considered a case where an employee’s requests for time off for religious reasons were allegedly not accommodated by their employer in a workplace with 24/7 shifts and collective bargaining agreement terms about shift assignments. The court upheld the trial court’s summary judgment of dismissal because, as a matter of law, it was an “undue hardship” for the employer when the requested accommodation required a violation of a collective bargaining agreement (CBA).

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Public Records Act

Court of appeals clarifies when the deliberative process exemption in RCW 42.56.280 applies.

Citizen Action Defense Fund v. Washington State Office of Financial Management (7/16/2024) – The court of appeals held that for a collective bargaining agreement (CBA) between the state and bargaining units representing state employees, the deliberative process exemption in RCW 42.56.280 does not expire until funding for the CBA has been approved by the state legislature.

In this case the plaintiff had requested copies of the state’s and union’s original offers. The state asserted the deliberative process exemption and litigation ensued. The court of appeals, on a de novo review (in a de novo review, the appellate court gives no consideration to the trial court’s decisions, but instead reaches its own conclusions based on the record), concluded that the specific process in RCW 41.80.010 for ratification of CBAs controlled the question of when the deliberative process exemption expires. That statute specifically requires that the legislature fund a CBA before the CBA becomes final. The plaintiffs also argued that the exemption should expire at the latest when the proposal had been submitted for funding. But the court rejected that argument under the facts of the case; the request had been submitted and denied before the proposal had even been submitted to the governor, let alone to the legislature for funding.

The court of appeals relied on the analysis in Progressive Animal Welfare Society v. University of Washington (1994). It declined to follow the Division One of the court of appeals’ analysis in West v. Port of Olympia (2008). In West the court held that the exemption applied only until the results of the policy-making process were presented to the port commission for adoption. It did so because the facts of West were different from those presented here. In West all the decisions were to be made by the port commission. Here, the approval process was divided between the governor’s office and the legislature. 

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Referendum – Verification of Signatures

In a challenge to the county’s process to verify signatures on a referendum petition, a writ of mandamus (order requiring government official to perform a duty) is not available. A statutory writ of review (order to examine a lower court’s decision) is also unavailable because the act of reviewing signatures is not a judicial function. Other challenges to the county’s review also failed.

Wiklem v. City of Camas and Clark County (7/9/2024) – The City of Camas adopted a new utility tax. As provided for in state law, Mr. Wiklem sought to subject the new tax to a referendum vote. The county conducted its verification process and after rejecting a number of signatures, determined that the number of valid petitions fell short of that required to place the measure on the ballot. Mr Wiklem filed suit against the city and the county claiming several statutory bases by which the court should require the county to validate the signatures and place the referendum on the ballot. The court of appeals rejected each basis. For this summary we focus on the main two arguments.

First, the court held that a writ of mandamus was not available in this case because a writ of mandamus may only be used to compel performance of a mandatory duty. It may not be used if the act or duty is discretionary. Citing previous case law, the court of appeals concluded that, because the act of signature verification involves discretion, a writ of mandamus cannot be used to challenge the results.

Next, the court held that a statutory writ of review could not be used to challenge the county’s actions because that type of writ is only available if the office is exercising a judicial function. In this case the court held that verification of signatures is not a judicial function. For the same reason, the court also rejected Mr. Wiklem’s argument that a constitutional writ of review could be used to overrule the county’s decision.

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Public Records Act

A nonprofit corporation that the City of Seattle contracted with to manage one of the city’s parking and business improvement areas was not subject to the Public Records Act (PRA).

Steve Horvath v. Dbia Services Dba Metropolitan Improvement District (7/8/2024) – The Washington Court of Appeals applied the four factor “Telford Test” and agreed with the trial court that the nonprofit was not subject to the PRA. The court clarified that the proper standard of review of a summary judgment “Telford” determination was whether the trial court had abused its discretion, and not a de novo review. (In a de novo review, the appellate court gives no consideration to the trial court’s decisions, but instead reaches its own conclusions based on the record). Both parties argued that, as a summary judgment order, review should be de novo. In rejecting the parties’ arguments, the court followed precedent holding that if the original order required the trial court judge to exercise their discretion because the applicable statute did not provide adequate guidance, the abuse of discretion test was appropriate. The court noted that the PRA does not provide adequate guidance to trial courts in at least two areas: calculation of monetary penalties, and application of the “Telford” factors.

Applying this test, the court upheld the trial court’s decision on all four ”Telford” factors.

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Housing and Homelessness

A city ordinance that restricted recreational vehicle parking in the right-of-way or a publicly-owned parking lot did not violate the plaintiff’s specific individual rights.

Potter v. City of Lacey (7/3/2024) – Washington’s Supreme Court issued a very fact-specific opinion regarding a person’s right to live in a vehicle in the public right-of-way or on a public property.

In 2019, the city passed an ordinance barring people from parking large vehicles and trailers on public lots and streets for more than four hours per day. Mr. Potter lived in a 23-foot travel trailer, and he parked it and his truck on public lots and streets in the city.

When ordered to move by the city, he did so, but then filed a lawsuit in federal court. Mr. Potter’s argument was that the city’s ordinance violated his rights under the Washington State Constitution to intrastate travel. (Mr. Potter called this a “right to reside.”) The Ninth Circuit Court of Appeals asked the Washington State Supreme Court to answer the question about interpretation of the state constitution.

The Washington State Supreme Court noted that Mr. Potter had not challenged the ordinance on its face, but only as applied to his specific circumstances. Holding that the city had broad constitutional authority to adopt generally-applicable parking regulations, the court concluded that Mr. Potter had not established that the state constitution protected his specific method of residing in the city. To the extent Mr. Potter raised other issues in federal court, the final results of this case will be determined by the Ninth Circuit.  

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Public Records Act

One-year statute of limitations for a closed public records request did not begin because the email stating that the request would be “administratively closed” if the requester did not send payment for copies was not adequate.

Soule v. State of Washington (7/2/2024) – The court of appeals held that the state’s email warning the requester that the request would be “administratively closed” was not “objectively sufficient to put a reasonable, nonattorney requester on notice that the one-year limitations period has started to run because the agency does not intend to disclose additional records or further address the request.”

Because of the timing of the facts of this case the court of appeals did not apply the most recent Washington Supreme Court guidance in Cousins v. State (2024). Instead, the court applied the analysis in Belenski v. Jefferson County (2016).

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Crime-Free Rental Housing Program

The Attorney General has standing to challenge a city’s operation of its crime-free rental housing program, as fair and lawful operation of such a program is a matter of public concern, and the city was not entitled to summary judgment based on qualified immunity, municipal liability, the availability of injunctive relief, or the prima facie (based on first impression) challenge to the housing discrimination claims.

State v. City of Sunnyside (6/20/2024) – This case involved a challenge to the City of Sunnyside’s operation of its crime-free rental housing program (CFRHP). State law required that such programs required the police notify the landlord if a tenant committed a specific crime, and the landlord would then serve a notice to comply or quit to the tenant, and proceed with eviction. The Attorney General filed an action alleging the program was being improperly used, that the evictions were occurring without the required due process and may have disparately impacted protected classes.

The court first held that “the attorney general is authorized to bring this action under RCW 43.10.030(1) because this case involves matters of public concern in which the State has an interest.” The court found that: (1) the “matter of public concern” analysis looks to whether the matter has a significant effect on Washingtonians, rather than whether it affects a significant number, and (2) fair and lawful operation of a CFRHP (that does not violate due process and anti-discrimination laws) is a matter of public concern because it has a significant effect on state residents.

The court agreed summary judgement was proper for the city on the Residential Landlord-Tenant Act (RLTA) claims, but found the city was not entitled to summary judgment based on:

• Qualified immunity (genuine issues of material fact about whether the city’s police officers forced tenants to leave their homes through extrajudicial evictions, without sufficient due process);
• Municipal liability under §1983 (current evidence showed the city provided inadequate training and lacked an official written policy that allowed the CFRHP to be operated improperly);
• The availability of injunctive relief (the record demonstrates the city would enforce the program in the same manner if not for the litigation and intend to resume enforcement after resolution); or
• The prima facie challenge to the housing discrimination claims (genuine issues of material fact that the city’s enforcement of the program had a disparate impact on households that are Latinx, headed by women and include children and that the protected classes may have been a substantial factor in such enforcement).

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Public Duty Doctrine

The public duty doctrine shields a city from liability when a police officer performs an exclusive government function required by statute: responding to and investigating a reported vehicle collision.

Zorchenko v. City of Federal Way (6/10/2024) – The City of Federal Way’s police officer responded to a 911 call for assistance in obtaining a police report after a minor traffic collision. The officer parked her patrol vehicle at an angle behind the two vehicles and activated its flashing lights. A van sideswiped the patrol vehicle, struck one of the cars and pinned under the van one of the individuals involved in the initial collision. A suit was filed against the city, alleging the officer negligently parked her patrol vehicle.

The sole issue presented was whether the trial court erred in applying the public duty doctrine and dismissing the negligence claim against the city. The court of appeals affirmed, holding that the police officer was performing an exclusive government function required by statute (responding to and investigating a reported vehicle collision) and owed a duty to the public at large, so the public duty doctrine applied and the city was not liable.

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Tort claims

A plaintiff must serve a tort claim on a person authorized to accept service of process under RCW 4.28.080(2), “Substantial compliance” is not contemplated in the statute.

Jeff Young, Appellant v. City of Port Angeles (5/29/2024) – In this case, the plaintiff attempted to serve a summons and complaint on the city. Because of COVID-19 restrictions the process server was denied access to the office of the city manager and administrative assistant came to meet the process server and took the summons and complaint. 

The city filed an answer to the complaint, alleging in part that the plaintiff failed to properly serve the city. The city filed a summary judgment motion to dismiss based on improper service, which the court granted. 

On appeal, the court reviewed the service of process requirements for municipalities in RCW 4.28.080(2), which requires service to be made on the mayor, city manager, or, during normal office hours, to the mayor’s or city manager’s designated agent or the city clerk.

The court upheld the dismissal, rejecting the plaintiff’s arguments that the city’s COVID-19 access restrictions and the fact that the city manager’s assistant took the documents mean that the plaintiff had substantially complied with the service requirements. The court emphasized that “substantial compliance” is not allowed. It appears to have been important to the court that the city clearly indicated that service was improper, but the plaintiff never tried to re-serve the city properly.

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Utility Tax

A prepaid wireless service is considered a telephone business under RCW 82.16.010 and is subject to the city utility tax.

TracFone Wireless v. City of Renton (4/29/2024) – The question in this court decision was whether TracFone Wireless, which buys wireless airtime from network carriers and resells it at retail and wholesale, is subject to the city utility tax. The city hired Taxpayer Recovery Services to determine whether TracFone was subject to the tax; it concluded it was and the city assessed the tax on both the company’s consumer and wholesale sales. At the administrative appeal, the hearing examiner held the sales were subject to the tax. TracFone petitioned to the superior court for a writ of review; the superior court affirmed the hearing examiner’s decision.

On appeal, the court of appeals first considered whether the hearing examiner properly admitted and considered two of Renton’s witnesses. The court disagreed, noting that the hearing examiner is held to a less strict administrative standard. The court next held that TracFone is a telephone business under RCW 35A.82.060 and is subject to the city utility tax. The court noted that RCW 82.16.010 defines a telephone business to include one that provides “access” to a telephone network and that TracFone provides access to telephone networks. The court also held that the statutory delegation of taxing authority is not limited to “telecommunication companies.”

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Public Works Contracting

Failure to strictly comply with the notice, protest, and claim provisions in a public works contract bars the contractor from pursuing claims against the agency.

Carey v. City of Snoqualmie (4/19/2024) – This case involved a contractor’s lack of compliance with contractual notice, protest and claim provisions. The public works contract at issue incorporated the Washington State Department of Transportation (WSDOT) standard specifications, which have mandatory notice and claim procedures that a contractor must follow when they are seeking additional time or payment on a project. The contractor sued for breach of contract and the main question was whether the contractor complied with the notice of claim standards. On summary judgment, the superior court found that Carey waived the right to pursue its claims because it failed to comply with standard specifications related to notice, protest and claims, which are conditions precedent to litigation. 

On appeal, the contractor argued that it was not required to strictly comply with the notice and claim provisions and that substantial compliance was sufficient. The court rejected this argument, holding that precedent makes clear that contractors “must follow the specific requirements of the notice, protest, and claim provisions in order to preserve their contractual claims for litigation.” In this case, Carey failed to comply with the substantive requirements, which barred their claims.

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Water Rights

A water conservancy board lacks standing to challenge the Department of Ecology’s denial of administrative division requests related to water rights.

Benton County Water Conservancy Board v. Department of Ecology (4/11/2024) – This case looked at whether the Benton County Water Conservancy Board (Board) had standing under the Administrative Procedure Act to challenge a Department of Ecology (DOE) policy concerning water rights transfers. DOE processes water rights transfers and conservancy boards help expedite voluntary water right transfers; the two agencies hold the same authority to review water right transfer applications, but DOE has mandatory oversight. This case involved the Board’s filing of an administrative decision confirmation request with the Department to confirm a division of a water rights that had been placed in trust. The Board argued that DOE’s denial of the requests inflicted cost and delay and more on the Board. The court held that under the Administrative Procedure Act, a party must meet the following to have standing to challenge an agency action: injury-in-fact requirements and a zone of interest test. The court held that the Board failed to meet these and has no standing to challenge DOE’s decision. 

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Public Records Act

A sufficient PRA closing letter must explain how the request was fulfilled, that the agency is now closing the request, and that the one-year statute of limitations has started to run, and the agency does not intend to further address the request.

Cousins v. State and Department of Corrections (4/11/2024) – This case involved a records request that was closed, reopened, closed, and then supplemented. The request was closed in January 2019, with a letter stating the request “is now closed. However, if you should have any questions related to this request, you may contact [records staff].” The requestor followed-up with questions, including about missing email attachments, but the Department of Corrections' (DOC) responses did not address the questions. DOC mistakenly informed the requestor that the request had been closed due to nonpayment; the requestor explained this information was inaccurate and believed DOC would continue to work on the request. In July 2020, DOC reopened the request and produced hundreds of responsive records. In January 2021, the requestor filed a PRA claim, but DOC asserted the statute of limitations had run out in January 2020, one year after the 2019 closing letter. In June 2021, DOC produced an installment with a cover letter stating the request was “now” closed. DOC produced additional records in August 2021, stating the request “remains” closed. 

The Supreme Court held that a sufficient closing letter will generally start the statute of limitations clock and that subsequent production of records would not ordinarily restart the limitations period. However, DOC’s January 2019 closing letter was not sufficient to start the limitations period because it didn’t explain why the request was closed or that the limitations period had begun to run. The Court emphasized that merely stating that a request is closed is not sufficient, and a sufficient closing letter must: (1) explain how the request was fulfilled; (2) why the agency is closing the request; (3) that the agency does not intend to further address the request; and (4) that the statute of limitations has started to run. The requestor must also invite the requestor to ask follow-up questions. 

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Prevailing Wages

County limitation does not apply to use of collective bargaining agreements to establish prevailing wages.

Associated General Contractors, et.al. v. State of Washington, et.al. (3/14/2024) – When establishing the prevailing wage to be paid on public works projects, RCW 39.12.015(3)(a) directs the Department of Labor’s Industrial Statistician to adopt the highest collective bargaining agreement (CBA) rate in a geographical jurisdiction as the prevailing wage for a trade. If there is no applicable CBA, the statistician conducts wage and hour surveys in the county in which the work is to be performed to establish the prevailing wage (RCW 39.12.026(1)).

Reversing the court of appeals decision in Associated Gen. Contractors of Wash. v. State (2021), the Washington Supreme Court found no conflict in the statutory language between the broader geographical jurisdiction use of CBA rates and the narrower county limitation when the statistician conducts a wage and hour survey because there is no applicable CBA.

The court determined that the county limitation was part of an older statute requiring the use of wage and hour surveys. It concluded that the newer language requiring use of the CBA rate did not affect, and was not limited by, the older language.

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Solid Waste Disposal

County has the authority to regulate disposal of solid waste generated within its boundaries, without exceeding its police power or violating the privileges and immunities clause in the constitution.

SkyCorp v. King County (2/13/2024) – The appellants challenged a King County Code section which required that mixed construction and demolition waste that was generated and then collected within King County be disposed of at King County designated facilities. Sky Corp disposed of the waste at a licensed, but not designated, facility in Yakima County and King County issued a citation and a fine.

SkyCorp challenged the ordinance as violating Article XI, Section 11 of the constitution, alleging the ordinance is not local, it conflicts with state law, and it is an unreasonable exercise of police power. First, SkyCorp argued that the county’s citation constitutes an extraterritorial application of the county’s police power because the county is regulating the disposal of solid waste beyond its borders. After a lengthy discussion, the court disagreed, holding that the ordinance is local as it only applies to waste generated within its boundaries and the out-of-county downstream effects are incidental to this primary regulation.

Second, SkyCorp argued that RCW 70A.205.195 authorizes individuals to dispose of solid waste at any waste disposal site that has a valid permit and, therefore, the county code conflicts with state law. The court again disagreed, stating that “just because the state permits an activity to be licensed, does not mean such an activity must be allowed under local law.” Here, RCW 70A.205.195 does not create an affirmative right to dispose of solid waste at any locally licensed facility, so there is no conflict. Also, RCW 36.58.040 authorizes counties to designate disposal sites; this language would be superfluous if all disposal sites had to be designated. 

Third, SkyCorp argued that application of the code is unreasonable exercise of police power as it does not promote health, safety, peace, education or welfare of the people of the county. The court again disagreed, finding that the county had identified reasonable public health, safety and welfare impacts resulting from regulating the waste from start to finish, including preventing diminished air quality and carbon emissions from hauling waste to distant counties and ensuring disposal in compliance with strict environmental standards.

SkyCorp also argued the code violated the privileges and immunities clause because the county grants a privilege to certain favored facilities to SkyCorp’s financial detriment. Since disposal of solid waste is not a fundamental right, the court rejected the argument.

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Water Utility Rates

Both Chapter 80.38 RCW and RCW 35.92.010 apply to establishment of utility water rates; while the utility has the reasonable discretion to fix its rates, those rates must be just, fair, reasonable, and sufficient.

West Terrace Golf v. City of Spokane, et. al. (2/6/2024) – Water users residing outside of the city sued the city for imposing higher water rates on nonresident users. The water users alleged this higher rate violated chapter 80.28 RCW, which requires adopted rates to be just, fair, reasonable and sufficient, prohibits unreasonable preferences and rate discrimination, and prohibits water utilities from charging different rates for the same service. The city claimed RCW 35.92.010 controlled over chapter 80.28 RCW; RCW 35.92.010 grants cities and town “full power to regulate and control…the price” of water services.

After exploring extensive legislative history, the court held the grant of “full power” in RCW 35.92.010 “does not overcome the legislature’s subsequent enactment of the rule that rates be ‘just, fair, reasonable and sufficient.” Rather, the court found the statutory requirements to be reconcilable and gave effect to both: (1) under RCW 35.92.010, the utility must charge a uniform rate to the same classification of customers or service; and (2) under RCW 80.29.010(1), that rate must be just, fair, reasonable, and sufficient. The city, therefore, has the discretion to fix rates and those rates are presumptively reasonable. Evaluating whether rates are excessive and disproportionate requires consideration of whether the rates are so low so as to deprive the utility of means to render adequate service or so high as to unduly burden the public. The matter was remanded to the trial court for consideration consistent with the opinion.

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Jails

A county operating a jail owes a non-delegable duty to inmates to protect them from harm.

Anderson v. Grant County (11/28/2023) – An inmate in a county jail died of a heroin overdose while in custody. The inmate’s parents brought a wrongful death action against the county, alleging that the county was negligent in failing to adequately search another inmate who smuggled the heroin into the jail, failing to detect the heroin in the inmate’s cell, and failing to intervene in the inmate’s overdose crisis before his death. 

The county argued that it was not liable under RCW 4.24.420, which states that it is a complete defense if a person who dies or is injured was engaged in the commission of a felony. In the alternative, it argued that principles of comparative fault, in which fault is allocated on a percentage basis, should apply.

The Washington Court of Appeals disagreed. When an inmate is in a county jail, the county possesses complete control over the inmate’s liberty. Under Washington case law, that creates a special relationship under which the county owes a “non-delegable duty affirmative duty” to protect inmates from harm and ensure their health, welfare, and safety. Granting immunity or allowing the use of comparative fault would nullify the county’s duty. 

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Lawful Nonconforming Use

County correctly denied a permit application requesting rental of two short term rentals be approved as a legal nonconforming use, as the use was not legal and the property owner did not have a vested right to continue its unlawful, nonconforming use.

Icicle/Bunk, LLC v. Chelan County (10/17/2023) – The case involved a county’s code regulating short term rentals (STR). In 2007, the county adopted a code requiring the owner occupy either the primary unit or the accessory unit as their permanent residence and, in 2021, the county modified its code to prohibit more than one short-term rental per parcel. Since 2006, Icicle had rented out two STRs on their property, without residing on the property. In 2021, Icicle submitted a permit application to continue operating two STRs as a nonconforming use. The permit was denied and the hearing examiner affirmed the denial.

On appeal, Icicle argued that its use of the property for two STRs is a legal nonconforming use that is allowed to continue even after the 2021 code modification. The court stated that a nonconforming use is a use which “lawfully existed prior to enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.” In other words, “a nonconforming use” is a ‘vested’ property right that has protections; but it’s only a right not to have the use immediately terminated in the face of a zoning ordinance which prohibits the use. The court held Icicle’s proposed permit application did not meet the requirements for a legally nonconforming use, largely because the property owner did not occupy either the primary unit or the accessory unit as their permanent resident. In addition, the court held that requiring Icicle reduce the number of buildings used for STRs is a valid regulation and does not constitute a termination of use.

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Growth Management Hearings Board

The Growth Management Hearing Board (GMHB) is not required to hold a hearing prior to dismissing a Growth Management Act (GMA) challenge that has been settled by the parties after a GMHB finding of noncompliance.   

Spokane County v. Growth Management Hearings Board (9/5/2023) – Various parties (collectively referred to as Futurewise) brought four administrative challenges against Spokane County (County), alleging violations of the GMA. The GMHB found that the County was in violation of the GMA. The County and Futurewise subsequently settled the challenges and sought dismissal of the challenges by the GMHB.

The GMHB took the position that RCW 36.70A.330 required a compliance hearing prior to dismissal of the challenges, even when those challenges are settled by the parties to the challenge. The Washington Court of Appeals disagreed. It noted that the statutory procedure that mandates a compliance hearing after a finding of noncompliance is applicable when the parties dispute the government's compliance with the GMA. If the parties settle their dispute, there is no longer a controversy for the GMHB to resolve. To require a compliance hearing after the parties have settled their dispute, in the words of the court, “would be pointless.”

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County Sheriffs

Legislation restricting the use of tear gas to suppress riots by law enforcement unconstitutionally interferes with the core functions of a county sheriff’s office.

Snaza v. State (9/14/2023) – In 2021, the Washington Legislature adopted legislation that, among other things, restricts the use of tear gas by law enforcement in response to riots. Seven counties and their county sheriffs contested one of the requirements in RCW 10.116.030(3), which requires law enforcement to obtain authorization from the highest elected official of the jurisdiction in which the tear gas is to be used. The counties contended that this requirement violates Article XI, Section 5 of the Washington Constitution, which provides that the Legislature shall prescribe the duties of county officers, such as the county sheriff. Under Washington case law, once those duties have been established, the Legislature cannot delegate the core functions of a county office to a different official.

The Washington Supreme Court found that a sheriff's discretion in determining what use of force is necessary to fulfill their duties based on existing particular circumstances is fundamental to their office. This discretion in lawful use of force is a core function of the sheriff's office. Since RCW 10.116.030(3) delegates or transfers to another official the sheriff's authority to exercise discretion in deciding the necessary use of force to quell a riot, it is an unconstitutional interference in the sheriff's core functions, and violates Washington Constitution Article XI, Section 5.

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Public Records Act

A union has standing on behalf of their members to seek an injunction to protect disclosure of records related to those members, but to obtain an injunction, one must show particularized – not general – harm will result.

Washington Federation of State Employees v. State of Washington (8/24/2023) – The case involved a request from the Freedom Foundation for the identities and workplace contact information for public employees. The Washington State Federation of State Employees and other labor unions (Unions) sought to protect the information for members who are victims of domestic violence, sexual abuse, stalking and harassment. During the course of the case, the Washington State Legislature enacted a law exemption for the requested information (MRSC covers this new exemption in its blog New PRA Exemption Available to Protect Employee Safety). Still, the case clarified a few issues that remain of interest for local governments:

1. The Unions met all three prongs for associational standing; and
2. The Unions did not meet the requirements for a permanent injunction under RCW 42.56.240 because they did not show how individual public employees would be harmed by disclosure. The Unions submitted declarations that the court deemed to be too generalized and to be inadmissible hearsay, therefore failing to show how affected employees would experience particularized harm.

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Rights Granted by Access Easement

Access easement granted the city sufficient rights to construct a public walkway.

City of Edmonds v. Edmonds Ebb Tide Association of Apartment Owners (8/21/2023) – This case involved an appeal of a declaratory judgment ruling that the City of Edmonds had the right to construct a public walkway on an access easement granted to the city by plaintiff Ebb Tide’s predecessor in interest. The court first held that the claim is ripe for review, finding that all ripeness considerations are satisfied. Notably, the court did not agree with plaintiff’s argument that further factual development is required (the second ripeness consideration) and the grant of declaratory relief cannot be final (the third ripeness consideration) because the walkway design is only 30% complete. The court stated that plaintiffs cannot hypothesize some factual development that could potentially affect a trail court’s ruling granting declaratory relief; rather, the second ripeness consideration only asks whether “the issues raised [...] do not require further factual development.” The court held they do not.

Next, the court held that the easement granted the city sufficient property rights to construct the proposed walkway. The main issue here was whether the proposed walkway can extend below the surface of the beach, something not expressly addressed in the easement language. The court disagreed with the trial court’s ruling that the easement is ambiguous in this regard; rather, the court found that the express, unambiguous language of the easement does not limit the depth of the permissible improvements. And, even if it was ambiguous, substantial evidence supports the city’s position that the city can construct pilings below the surface of the beach.

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Water Rights

Further factual development was needed to determine if an irrigation district’s water rights certificates could be transferred to a city.

Burbank Irrigation District #4 v. Department of Ecology (8/17/2023) – This case involved a proposed transfer of water rights by Burbank Irrigation District to the City of Pasco. The Franklin County Water Conservancy Board granted the transfer application, subject to approval by the Department of Ecology. Ecology denied the application, concluding that the transfer would result in an unlawful enlargement of water rights under the district’s certificate. On appeal, the Pollution Control Hearings Board (PCHB) granted Ecology’s motion for summary judgment, that approval of the application would cause unlawful enlargement of water rights. The superior court reversed the decisions of the PCHB and Ecology and restored the Conservancy Board’s decision approving the transfer; in its decision, the superior court addressed issues the PCHB did not reach. The matter was appealed to the court of appeals.

This case has involved facts that this case summary will not go into. The main takeaways from the court of appeals decision are:

1. The matter should not have been decided on summary judgment because of the disputed facts surrounding the amount, scope, and character of the water rights granted by the district’s various water rights certificates; and
2. Under APA review, the court of appeals sits in the same position as the superior court and neither the court of appeals nor the trial court can address issues that were not decided by the PCHB.

Ultimately, the court of appeals affirmed reversal of the PCHB’s summary judgment decision but remanded to the PCHB to consider additional summary judgment issues.

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Inverse Condemnation

The right to damages for an injury to property is a personal right belonging to the property owner and the right does not automatically pass to a subsequent purchaser. Inverse condemnation claimants must show that the subsequent purchaser rule does not bar their suit; it is not a defense that must be proved by the government.

Maslonka v. PUD No. 1 of Pend Orielle County and Port of Pend Orielle (8/3/2023) – This case involved an inverse condemnation claim related to flooding occurring on the plaintiffs’ private property. In 1955 and 1960, the plaintiffs’ predecessors in interest sold express easements to the Public Utility District (PUD) to allow water to flood the land in question to a specified elevation. Flooding is necessary for proper dam operation (which involves raising and lowering gates at various times, depending on the water flow). Seasonally, due to snow melt, the PUD lifts the gates and the river floods and reaches an elevation on the plaintiffs’ land that surpasses the express easements. This flooding caused damage on plaintiffs’ property.

The plaintiffs filed a complaint against the PUD for (1) governmental taking, (2) statutory trespass, (3) nuisance, and (4) negligence. The trial court granted the PUD’s motion for summary judgment, finding that the subsequent purchaser rule barred the inverse condemnation claim and that the PUD had established a prescriptive easement, negating the trespass and nuisance claims. The court of appeals reversed, holding that the subsequent purchaser rule is a defense and the PUD failed to prove this defense; it also allowed the tort claims to proceed.

The Supreme Court reversed, holding that the subsequent purchaser rule is not a defense and instead is a doctrine of standing, which the plaintiff must establish. The court noted that the subsequent purchaser rule limits who may sue for inverse condemnation by prohibiting a subsequent purchaser from asserting the legal rights of the owner at the time of the alleged taking. Here, the proper inverse condemnation claimants were the previous owners who owned the land when the dam was built in 1955. As subsequent purchasers, the plaintiffs do not have an inverse condemnation claim unless they can establish a new taking after their purchase in 1993, which they have failed to do. The court also held that where the subsequent purchaser rule bars the underlying takings claim, a party cannot proceed in tort for the same underlying conduct.

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Public Works Contracts

Public works contractor was entitled to assert a defense based on design defects in a dispute over liability for the cost to repair a broken water pipe that had been installed by the contractor.

King County v. Walsh Constr. Co. II (7/3/2023) – Walsh Construction Company (“Contractor”) entered into a public works contract with King County to install a sewer overflow control pipeline. The purpose of the pipeline was to divert sewer overflows to a new diversion structure and storage tank. After issuing a certificate of substantial completion, the county discovered a fracture in the pipe that was allowing soil and debris into the pipe and preventing overflow from reaching the diversion structure and storage tank. The County notified the Contractor that the work did not conform to the contract. The Contractor responded that the break in the pipeline was the result of a design defect. In order to expedite repair, the county agreed to pay Walsh to replace the broken pipeline, subject to a reservation of rights to seek reimbursement. The county subsequently sued to recover the amounts paid to replace the pipeline. 

The contract contained a “correction of work or damaged property” provision stating that work not conforming to contract specifications or perform satisfactorily shall be corrected by the Contractor at no charge to the county. The contract also contained a provision stating that the Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering.   

On summary judgment, the trial court granted summary judgment in favor of the county striking the Contractor’s defense that the broken pipeline was the result of a design defect. The Washington Court of Appeals reversed. It noted that the Contractor had a duty to perform work that complied with the prepared plans but was not required to provide professional or engineering services. As a result, the trial court should not have dismissed the Contractor’s design defect claims on summary judgment. 

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Washington Voting Rights Act (WVRA)

All Washington voters have standing to sue under the Washington Voting Rights Act and the WVRA does not facially violate the privileges and immunities clause of the Washington Constitution or the equal protection clause of the U.S. Constitution.

Portugal v. Franklin County (6/15/2023) – This case is the first appellate case to consider the Washington Voting Rights Act (WVRA) and arose from a voter-initiated challenge to Franklin County’s system for electing its three-member board of commissioners. The plaintiffs filed suit alleging that the at-large general election prevents latinos from electing a candidate of choice and the county has diluted the latino community’s votes. James Gimenez intervened to defend the county’s electoral system and alleged the plaintiffs lacked standing. Meanwhile, Franklin County and the plaintiffs entered into a Court Rule (CR) 2A settlement agreement which the court approved and dismissed the plaintiffs’ claims with prejudice. Gimenez filed for direct review on a number of issues, including: (1) plaintiffs’ standing; (2) whether the legislature repealed the WVRA by implication; (3) whether the WVRA facially violates the privileges and immunities clause of the Washington Constitution; and (4) whether the WVRA facially violates the equal protection clause of the U.S. Constitution. The court held that the plain language of the WVRA protects all Washington voters from discrimination on the basis of race, color, and language minority group and that the plaintiffs, therefore, have standing and the WVRA has not been repealed by implication. The court also dismissed the constitutional challenges.

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Street Vacation—Nonuser Statute

Under the nonuser statute, a county road is not vacated by operation of law if the road was annexed by a city or town within five years of dedication.

Messersmith v. Town of Rockford (5/18/2023) – The plaintiffs owned property that is adjacent to right-of-way that was created by plat in 1889. In 1890, the Town of Rockford was incorporated and the platted area became part of the Town. The plaintiffs sought to vacate the right-of-way under the “nonuser statute” (former RCW 36.87.090). The non-user statute was originally adopted in 1890 and provided that any county road that remains unopened for five years after authorization or dedication is vacated by operation of law. The nonuser statute is different from the statutory process by which cities (chapter 35.79 RCW) and counties (RCW 36.87.010-.080) normally vacate the right-of-way. 

Both parties moved for summary judgment, and the trial court granted the plaintiff’s motion, finding that the right-of-way was vacated to the nonuser statute. The Washington Court of Appeals reversed, finding that the nonuser statute did not apply. The right-of-way was created by plat in 1889 when the area was still an unincorporated county. But the area was incorporated and became part of the Town in 1890. Once that happened, the rights-of-way were no longer county roads. The nonuser statute only applies to county roads, so incorporation or annexation into a city or town before the end of the five-year period renders the nonuser statute inapplicable.    

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Growth Management Act (GMA) Procedures

GMA challenge to rezone ordinance that was served on the city on the first business day after the expiration of the 60 day period for filing a petition for review substantially complied with GMA service requirements.

Kenmore MHP LLC v. City of Kenmore (5/4/2023) – The City of Kenmore (City) adopted an ordinance amending its municipal code and updating its zoning map to conform to recent comprehensive plan changes. The ordinance was published on April 18, 2019. On Friday, June 14, 2019, Kenmore MHP LLC (MHP) filed a petition for review (Petition) with the Growth Management Hearings Board (Board). The legal messenger responsible for serving the Petition on the City was not able to serve the City on June 14 and served it the following business day (June 17). RCW 36.70A.290(2) provides that petitions for review shall be filed with the Board within 60 days of publication, and WAC 242-03-230(2) provides that a petition for review shall be served on named respondents on or before the date filed with the Board. WAC 242-03-220(4) provides that the Board may dismiss a case for “failure to substantially comply” with the service requirements.

Based on the June 17 service date, the Petition was served on the City on the 60^th day after publication of the City’s ordinance, but it was not served on or before the date the Petition was filed with the Board. The City moved for summary judgment based on MHP’s failure to comply with the service requirements. The Board agreed, ruling that there was not a “justifiable excuse” for failure to serve the City on or before the date of filing with the Board, and therefore, the test for substantial compliance had not been met.

On appeal, the Washington Supreme Court reversed, finding that the Board’s decision that MHP did not substantially comply with WAC 242-03-230(2) was arbitrary and capricious. The Court reasoned that prior Board decisions had also taken into account whether a failure to comply with a procedural rule resulted in “prejudice” to a party. Since there was no claim of prejudice to the City for being served after (instead of on or before the date of filing with the Board), it was arbitrary and capricious for the Board to find a lack of substantial compliance. 

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Recall

The Supreme Court affirmed the trial court’s decision that knowing violations of the OPMA and the statewide mask mandate were factually and legally sufficient to support a recall petition.

In the Matter of the Recall of Bird (4/27/2023) – In early 2022, while a statewide mask mandate was in effect, the Richland School Board held a special meeting with the following on the agenda: “Resolution No. 940 – Local Control.” The resolution was not attached to the agenda and did not exist in written form – the only notice of the business to be transacted was the title of the agenda item. Two board members indicated at the meeting that they were not provided proper notice of the business to be transacted. At the special meeting, a majority of the board voted to make masks at schools optional.

A petition was filed to recall three board members, alleging violations of the OPMA and state law when they voted to lift the mask mandate from Richland schools. The trial court agreed that many of the counts were factually and legally sufficient to be placed on the ballot for the voters to decide. On direct appeal, the Supreme Court agreed with most of the trial court’s decisions.

First, the Court held that the short title failed to meet the OPMA’s obligation to specify the business to be transacted at the special meeting and affirmed the count as legally and factually sufficient to support a recall. The Court rejected the following arguments by the board:

• That the superintendent, not the board, has the duty to publish the agenda. The Court stated this is irrelevant and that the point is that if the agenda is insufficient, the OPMA bars the body from taking action.
• That the charge constitutes only a technical violation of the OPMA, and it’s just a pretext for the real motive for the recall petition – the vote to remove the mask mandate. The court again stated that this argument is irrelevant since violating the open meeting and notice requirements of the OPMA is not technical, rather it is a violation of the heart of the OPMA.
• That the board members did not intend to violate the law. The Court identified this as a factual matter for the voters to decide.

Second, the Court agreed that the board did not have the power to remove the mask mandate and determined that the count is legally sufficient to support a recall. The Court also held that the count is factually sufficient (e.g., whether the board members intended to commit the unlawful act) because the record includes “facts indicating” an intent to commit an unlawful act.

Next, the Court held that the board’s code of ethics did not constitute a mandatory duty but, rather, states aspirational goals and is optional. Therefore, board violations of the code of ethics cannot form the basis for misfeasance or malfeasance unless the petitioners show that the elected official exercised their discretion in a manifestly unreasonable manner, which was not alleged.

Finally, the Court held that a policy entitled Powers and Duties of the Board established mandatory responsibilities, including a requirement to take such actions as are necessary to assure compliance with the law. The Court held this count is legally sufficient because a violation of mandatory duties can constitute misfeasance and is factually sufficient because the mask mandate applied statewide and the board lacked the power to declare it unlawful.

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Tort Claims

A plaintiff must file a tort claim with a local government when the claim involves a local government employee acting within the scope of their employment even if the lawsuit is being brought against the employee in their individual capacity.

Hanson v. Carmona (3/23/2023) – The plaintiff was in a car accident caused by a local government employee who ran a red light. At the time, the local government employee was driving home from a training in a car owned by her local government employer. The plaintiff initially sued both the employer and employee. The employer and employee moved for summary judgment because the plaintiff did not file a 60-day notice of tort claim pursuant to RCW 4.96.020. The plaintiff then amended the complaint to remove the local government employer as a party and remove all allegations that the local government employee was acting within the scope of her employment.

The Washington Supreme Court ruled that RCW 4.96.020 applies to claims asserted against persons in their individual capacity if they are acting within the scope of their employment with a local government entity. That is the case even when the local government entity is not named as a defendant in the resulting lawsuit. The court noted that local governments are vicariously liable for the actions of their employees and required to defend their employees and pay any judgments entered against them pursuant to RCW 4.96.041. The 60-day tort claim filing requirement therefore applies to such claims regardless of whether the local government employer is made a defendant in any subsequent lawsuit. 

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Eminent Domain

City was authorized to condemn property rights in a creek for the purpose of improving its surface water drainage system and improving salmon habitat.

City of Sammamish v. Titcomb (3/13/2023) – The City of Sammamish (City) initiated condemnation proceedings to acquire property interests in a creek in connection with a project to improve the City’s storm drainage system and enhance salmon habitat.  The project was intended to reduce storm drainage system capacity issues and remove barriers to fish passage. The creek flowed under a property owner’s house, where a daylit fish ladder was integrated into the foundation. The City’s project called for relocation of the creek away from the home to an adjoining property that had been acquired by the City for that purpose.     

The homeowners argued that the City had no authority to condemn property for the purpose of improving fish habitat. The Washington Court of Appeals disagreed, noting that the City condemnation of property for stormwater facilities is a valid public purpose.  The fact that the project also provided fish habitat benefits did not divest the City of its authority to condemn property for stormwater improvements. The court also ruled that the City’s proposed acquisition was reasonably necessary and pointed out that the question of necessity is primarily legislative, subject to deferential review by the courts.

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State Environmental Protection Act (SEPA)

A legislative amendment to SEPA that eliminated the ability to review SEPA-related light and glare claims applied to a pending case challenging a development based on light and glare.

Fischer Studio Building Condominium Owners Assoc. v. City of Seattle (2/21/2023) – Fischer appealed the city’s design review approval of a proposed apartment building across an alley. Fischer first challenged the threshold determination that the proposal was not likely to have a probable adverse impact on the light and glare of the environment under SEPA. While the appeal was pending, the legislature modified SEPA to eliminate the ability to appeal based on light and glare for projects that are subject to local design review requirements, which curtailed the court’s authority to review SEPA-related light and glare claims. Because the amendment became effective while the case was pending appeal, the court was required to dismiss the light and glare claims. The second challenge claimed the city’s Design Review Board applied its guidelines inconsistently as compared to an unrelated prior proposal for the same site; the court dismissed this claim because Fischer didn’t identify any specific guidelines the Board applied inconsistently and failed to identify which of the LUPA standards in RCW 36.70C.130 applied to their challenge.

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Constitutionality of City Ordinance

The Supreme Court remanded to the trial court consideration of whether the City of Seattle’s hazard pay ordinance, which required hazard pay for gig workers for food delivery network companies during the COVID-19 pandemic, violated the takings and contracts clauses of the federal and state constitution and exceeded the city’s police power.

Washington Food Industry Association v. City of Seattle (2/9/2023) – During the COVID-19 pandemic, the City of Seattle adopted an ordinance requiring hazard pay (an extra dollar and a quarter for each work-related stop in Seattle) for gig workers for food delivery network companies. The court analyzed several challenges to the ordinance. Three challenges were dismissed:

1. RCW 82.84.030(5) which prohibits taxes on groceries, does not apply to the hazard pay ordinance because it does not impose a tax on groceries. Instead, it requires the companies to make a premium payment directly to their workers, which is not a tax.
2. The equal protection clause of the federal constitution does not require the city treat food delivery network drivers the same as other gig workers (like ride share) or workers in restaurants or grocery stores.
3. The privileges and immunities clause of the Washington Constitution does not apply because the ordinance doesn’t implicate a fundamental right of citizenship and it doesn’t treat classes of the same business differently.

Several challenges were not dismissed and were remanded for additional factual development and assessment:

4. The federal and state constitutions prohibit the taking of private property for public use without just compensation. Instacart claimed that its intangible property – i.e., its business of contracts with independent contractors who shop for and deliver groceries – is rendered commercially impracticable by the ordinance and the ordinance appropriates Instacart’s property rights in its business for private benefit of the gig workers. The court remanded this issue to determine the economic impact of the ordinance to Instacart’s business model.
5. Instacart argued the ordinance impairs existing contractual rights in violation of the contracts clauses of the federal and state constitutions. The court remanded this issue to determine the extent to which the ordinance impairs Instacart’s contracts.
6. Whether damages should be awarded to Instacart under 42 U.S.C. § 1983 depends on whether the ordinance violates the U.S. Constitution.
7. Whether the ordinance exceeded the city’s police power requires additional factual development to determine if the ordinance promotes the health, safety, and welfare of people during the pandemic.

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Public Duty Doctrine

Public duty doctrine does not apply in case where emergency responders went to the wrong location, resulting in a delay in providing medical aid.

Norg v. City of Seattle (1/12/2023) (Norg I) – A spouse called 911 seeking medical aid for her husband, who was having a heart attack. The dispatcher promptly assigned three units from two nearby fire stations to respond. The spouse provided the dispatcher the correct address for their apartment and the dispatcher told the spouse that “a lot of people” were on the way. The dispatcher provided the correct address to the units, but the units mistakenly went to a nursing home in the area for which they receive many calls. Upon realizing their mistake, the units went to the apartment, but the plaintiffs alleged that the delay caused the husband severe and permanent injuries.

The City of Seattle (City) moved for summary judgment, arguing that the public duty doctrine shielded it from liability. Under the public duty doctrine, a duty to the public at large (instead of specific individuals) is not a basis for imposing liability on government entities.  However, there have historically been four exceptions to the doctrine under which liability may be imposed, even when the duty is to the public at large.

The Washington Supreme Court decided that the doctrine did not apply and introduced a new element to the public duty doctrine analysis. It ruled that the doctrine applies only in cases based on breaches of special government obligations imposed by statute or ordinance. Therefore, the doctrine does not apply when the alleged breach is based on common law duties instead of duties imposed by statute or ordinance. The court found that a common law duty arose when the dispatcher assured the plaintiffs that the units were on the way. By going to the wrong address, the City breach that common law duty. Based on that, the public duty doctrine was inapplicable, so it was unnecessary to analyze whether any of the exceptions to the doctrine applied.   

Note: See also the Washington Court of Appeals decision, Norg v. City of Seattle (11/25/2024) (Norg II) (unpublished opinion), which clarified that a common law duty of care arises when a city responds to a 911 call, and that the voluntary rescue doctrine does not limit the city’s liability.

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2022

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Collective Bargaining

Municipal ordinance requiring all collective bargaining between the city and the union be conducted at an open public meeting is preempted by state law and is unconstitutional.

Washington State Council of County and City Employees v. City of Spokane (12/8/2022) – This court case considered the legality of a city ordinance which required all collective bargaining contract negotiations take place at an open public meeting. The court held that the ordinance was preempted by state law and is unconstitutional under Article XI, Section 11 of the state constitution.

The court held that the ordinance was conflict preempted by the Public Employees’ Collective Bargaining Act (PECBA) because:

• The ordinance set mandatory ground rules before negotiations occur, which directly conflicted with the negotiation process prescribed in PECBA; and
• Opening bargaining to public observation could have possible harmful effects, including inhibiting open exchange in negotiations and politicizing the bargaining process, which conflicted with the purpose of the PECBA to improve relationships between public employer and employees.

The court also held the ordinance was field preempted by the PECBA finding that the legislature intended collective bargaining to operate in a uniform manner statewide, without variation from local laws. Notably, the court pointed out that the OPMA and the PRA also exclude labor negotiations from their open government requirements, further supporting the conclusion that holding collective bargaining sessions at open public meetings undermines the legislature’s interest in statewide uniformity.

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Public Records Act

Federal law does not exempt records related to a complaint investigation into care and treatment of nursing facility patient. 

Hornbuckle v. Department of Social and Health Services (11/21/2022 publication date; 9/26/2022 date of decision) – Requestor sought access under the Public Records Act (PRA) from the Department of Social and Health Services (DSHS) to records related to a complaint investigation by DSHS into the care and treatment of a specific nursing facility patient. Pursuant to an agreement between DSHS and the Federal Department of Health and Human Services, DSHS performs investigations of nursing facilities that receive federal funding. DSHS exempted certain documents from disclosure based on 42 U.S.C. § 1306 and federal regulations. 

While federal law may sometimes provide a basis for nondisclosure as an “other statute” pursuant to RCW 42.56.070(1), the court ruled that the provision relied on by DSHS was not a PRA exemption. The court noted that the applicable language did not specifically exempt records from disclosure. The federal regulations also noted that requests for records maintained by a state would be responded to in accordance with state procedures, which further suggested that the exemption cited by DSHS was not an ”other statute.”

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Landlord-Tenant Regulations

City regulation requiring landlords to have good cause to terminate a residential tenancy and prohibiting certain types of discrimination was properly adopted through the initiative process and not in violation of the “single-subject” rule.

Rental Housing Ass’n of Washington v. City of Federal Way (11/14/2022) – The Rental Housing Ass’n of Washington (RHA) challenged the validity of a City of Federal Way (City) voter initiative requiring landlords to have good cause to terminate a residential tenancy or refuse to renew a lease. The initiative also prohibits discrimination against a tenant based on their status as a member of the military, first responder, health care provider, or educator. 

RHA argued that the initiative was invalid because the city attorney did not issue a determination of “the appropriateness of the topic of the initiative measure,” despite a City ordinance requiring him to do so. The city attorney declined to issue the determination, because the requirement conflicted with Washington case law stating that determining the validity of an initiative is exclusively a judicial function. 

The court upheld the validity of the initiative, ruling as follows:

• Federal Way's city attorney correctly interpreted case law to conclude that he had no authority to render an opinion on the validity of the initiative or to act as a gatekeeper to decide which initiatives could move to the next stage in the process and which could not.
• The initiative did not violate the requirement that an ordinance must be limited to a single subject.
• The initiative was legislative in nature and did not improperly include administrative issues.

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Employment Discrimination

Inclusion of a limited “no rehire” clause in a settlement agreement involving employment discrimination claims is not a violation of public policy.

Elgiadi v. Washington State University Spokane (11/8/2022) – Mr. Elgiadi was terminated after 29 years of employment at Washington State University—Spokane. He brought suit against for employment discrimination but did not seek reinstatement to his position. The parties later agreed to settle the case for $295,000. The settlement agreement signed by the parties contained a “no rehire” provision under which Mr. Elgiadi agreed he would not seek or accept employment with WSU—Spokane. Seven months later, Mr. Elgiadi brought suit, alleging the “no rehire” provision violates public policy and seeking class action status on behalf of former State employees whose settlement agreements contained similar provisions.

The court found that the “no rehire” provision does not violate public policy. The provision only applied to one branch campus of the WSU system, and therefore did not amount to a “blacklisting” of Mr. Elgiadi. The court noted that public policy encourages the settlement of legal disputes and ruled that the provision did not constitute a void noncompetition covenant under RCW 49.62.020 because Mr. Elgiadi was not an employee or independent contractor at the time he signed the agreement.

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Growth Management / Essential Public Facilities

The list of essential public facilities in RCW 36.70A.200(1)(a) is non-exclusive, and cities and counties shall have a process for identifying and siting essential public facilities not specifically listed in the statute. 

Homeward Bound in Puyallup v. Central Puget Sound Growth Management Hearings Board (9/27/2022) – Plaintiff petitioned the Growth Management Hearings Board (Board) challenging City of Puyallup zoning regulations that restricted the siting of day use centers and overnight shelters serving people experiencing homelessness. The plaintiff argued that these uses constitute “essential public facilities” for the purpose of RCW 36.70A.200. After Puyallup amended its regulations to allow such uses in more parts of the City, the Board found that day use centers and overnight shelters are not included in the non-exclusive list of essential public facilities in RCW 36.70A.200(1)(a) and that the City’s regulations were not inconsistent with its comprehensive plan.

The Washington Court of Appeals affirmed the Board. RCW 36.70A.200(1)(a) requires that cities have a process for identifying and siting essential public facilities. The plaintiff had asked the Board to declare that day use centers and overnight shelters constitute essential public facilities. The Court stated that for facilities not listed in RCW 36.70A.200(1)(a), the statute required the plaintiff to ask the City to identify day use facilities and overnight shelters as essential public facilities and the plaintiff had not done so. The Court upheld the Board’s determination that the City’s amended regulations were consistent with its comprehensive plan.    

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Growth Management

Washington Court of Appeals clarifies requirements for the capital facilities element of comprehensive plans. 

Futurewise v. Spokane County (9/22/2022) – Futurewise challenged Spokane County’s update to the capital facilities element of its comprehensive plan. The Washington Court of Appeals provided interpretive guidance on the capital facility plan element:

• The term “capital facilities” is not defined in the Growth Management Act (GMA). The court clarified that “capital facilities” includes “public facilities” as defined in RCW 36.70A.030(20) but includes other types of facilities, such as facilities built or installed to perform the public services listed in RCW 36.70A.030(21). In other words, “capital facilities” and “public facilities” are not synonymous, and “capital facilities” includes “facilities built or installed to perform some sort of service identifiable under the GMA.” 
• Transportation facilities are not required to be inventoried in the capital facilities plan element because the RCW 36.70A.070(6) calls for a transportation element as a specific component of the comprehensive plan. As a result, transportation facilities do not need to be addressed in the capital facilities element in addition to the transportation element of the comprehensive plan. 
• Under RCW 36.70A.070(3)(a) and (b), the capital facilities element must inventory all publicly owned capital facilities, not just those owned by the county. However, RCW 36.70A.070(3)(c), which addresses “the proposed locations and capacities of expanded or new capital facilities,” is limited to county facilities.
• RCW 36.70A.070(3)(d) requires the six-year capital facilities plan to clearly identify sources of money for financing capital facilities but does not require the plan specify the amount of money to be derived from each source.

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Torts / Risk Management

Material issues of fact precluded summary judgment in favor of County in case involving cyclist who sustained injuries striking a bollard.  

Schwartz v. King County (9/1/2022) – A cyclist was severely injured when he struck a bollard on a trail maintained by the County. The cyclist sued the County, alleging that the bollard was very difficult to see in the weather conditions that existed at the time of the accident.

The County moved for summary judgment, arguing that it had limited immunity under Washington’s recreational use immunity statute (RCW 4.24.210). That statute provides limited immunity to landowners who allow members of the public to use their land for recreational purposes. However, a recreational landowner remains liable for injuries sustained by users from a “known, dangerous, artificial, latent condition” for which warning signs have not been conspicuously posted. 

The Washington Supreme Court, in a 5-4 decision, ruled that the trial court should not have granted summary judgment. It found that there was a material issue of fact as to whether the bollard was a “known, dangerous, artificial, latent” condition and therefore remanded the case to the trial court for further proceedings.

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Venue

The proper venue for a property refund tax case is in the superior court in the county where tax was collected, pursuant to RCW 84.68.050.

Hardel Mutual Plywood Corp v. Lewis County (8/25/2022) – This court case addressed two venue statutes that are in tension with each other: (1) RCW 84.68.050, the more specific statute, which requires property refund tax cases to be brought in the superior court of the county where the tax was collected; and (2) RCW 36.02.050(1), the more general statute, which allows actions against a county to be commenced in that county’s superior court or in the superior court of either of the two nearest judicial districts.

The court concluded that the legislature intended the mandatory, specific statute to govern over the permissive, general statute and affirmed the trial court’s order transferring venue from Thurston County (one of the “nearest judicial districts” to the property at issue) to Lewis County (the superior court in the county where the tax was collected).

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Public Records Act

The school district violated the PRA by failing to conduct an adequate search and by constructively denying a records request due to its inaction in responding to the request.

Cantu v. Yakima School District No. 7 (8/2/2022) – This case involved Ms. Cantu’s (a parent of a child in the Yakima School District) multiple Public Records Act (PRA) requests submitted to the Yakima School District. Dissatisfied with the District’s response to her PRA requests, Cantu filed suit under the PRA.

The court first noted that several procedures are available for determining the merits of a PRA claim: (1) a show cause hearing (to determine if any agency has wrongfully denied a request or provided an unreasonable time estimate), which can be decided on the affidavits and where the agency carries the burden to establish its actions were reasonable and in compliance with the PRA; and (2) other normal civil procedures, such as intervention, declaratory judgement and writ. If facts are not in dispute, either party may move for summary judgment. The appellate court reviews PRA cases de novo.

The court then reviewed the District’s response to Ms. Cantu’s October 2016 request for “All incidences/incident reports where [AM] was a victim of bullying, threats, harassment, etc.” The District interpreted this as a request for incident reports, whereas Ms. Cantu argued the use of the “slash” symbol created ambiguity and the words may be used in the alternative. The appellate court agreed with the District’s interpretation.

The court next considered the adequacy of the District’s search in response to Ms. Cantu’s January 2017 records request. The court held the search was inadequate as the District failed to search for a specific term used in the request and failed to use search techniques to locate alternative word forms, thereby unreasonable narrowing the search.

The court next considered whether the District’s response to Ms. Cantu’s April 5, 2018 request amounted to a constructive denial of records. The court disagreed with the District’s position that an agency must affirmatively deny a request before a cause of action for wrongful denial accrues. Rather, the court held that an agency’s inaction, or lack of diligence in providing a prompt response to a PRA request, can ripen into constructive denial. And, the court held the District effectively denied Ms. Cantu’s records requests as it was not diligently working on the requests (it failed to provide a 5-day response, it missed its estimated compliance date, it provided no communication for a month and a half, it provided false information that the records office was closed for the summer, and it provided an empty Google directory to the requestor). Eventually providing the records did not cure the constructive denial in this case.

The case also addressed the adequacy of the daily penalty, noting that the reviewing court does not exercise discretion but instead determines if the trial court abused its discretion when determining the penalty.  The court held the penalty to be inadequate in light of the circumstances and constituted a manifest abuse of discretion.

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Public Records Act

City properly exempted real estate appraisal documents and redacted sales price information with respect to property acquired for a road improvement project.

Ekelmann v. City of Poulsbo (7/19/2022) – The City of Poulsbo (City) needed to acquire real property from property owners for a road improvement project. Pursuant to state and federal law, prior to commencing negotiations, the City was required to obtain appraisals to determine the fair market value of the properties to be acquired. Legal counsel for one of the property owners filed a public records request with the City seeking settlement agreements, purchase offers, purchase and sale agreements and purchase offers made in connection with the project. 

In response, the City produced 2,685 documents, some of which were redacted. The disputed redactions involved appraisals and sale price information under RCW 42.56.260(1) which applies to certain information relating to agency real estate transactions. The property owner sued, claiming that the withheld records were not exempt from disclosure under the Public Records Act (PRA).

The Washington Court of Appeals held that the appraisals were properly withheld pursuant to RCW 42.56.260(1)(a). It found that RCW 8.26.180(3), which relates to acquisitions for public works projects, requires an agency to provide appraisal information to property owners for their property. However, the statute does not require agencies to provide such information for other properties that are part of the project. The court noted that limiting property owners to appraisal information for their own property only puts all property owners on an equal footing, which is one of the purposes of RCW Chapter 8.26.

Similarly, the court found the City properly redacted sales price information under RCW 42.56.260(1)(b). That provision allows for redaction when public knowledge of the information would cause a likelihood of increased price. The court stated that it “is easy to understand how the sales prices of properties within the project could be used by other property owners in their negotiations with an agency to increase the sale price of their properties.”

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Taxation

City payroll expense tax was a valid exercise of taxing authority.

Greater Seattle Chamber of Commerce v. City of Seattle (6/21/2022) – In 2020, the City of Seattle (Seattle), in response to a homelessness emergency and loss of revenue due to the COVID-19 pandemic, adopted a payroll expense tax on certain entities doing business within Seattle.  “Payroll expense” is defined as “compensation paid in Seattle to employees,” and includes wages, commissions, stock, gifts, and bonuses, among other things. The tax applies to businesses with a payroll expense of more than $7 million in the prior calendar year. The payroll expense tax applies to the payroll expense of employees with annual compensation of $150,000 or more and has a tiered rate structure with three levels that increase as business payroll increases. The tax is levied on the business entity and employers are not allowed to make deductions from employee compensation to pay the tax. 

The Greater Seattle Chamber of Commerce (Chamber) brought suit, seeking a declaration that the tax is illegal and unconstitutional. The Chamber’s primary argument was that the payroll expense tax was precluded by the 1952 case of Cary v. Bellingham, in which the Washington Supreme Court struck down a city tax that required employees within the city to secure a yearly license and pay a tax on 0.1% on compensation received for services performed within the city. The Court of Appeals distinguished the Cary case, noting that it involved an income tax levied on the employee. In contrast, Seattle’s payroll expense tax is levied on the business itself. A city may impose a tax on the privilege of doing business within its jurisdiction, and that is different from imposing a tax on an employee’s right to earn a living by working for wages, which was the basis for striking down the tax on employees in Cary. 

The Court of Appeals noted that first class cities (such as Seattle) and code cities have broad taxing authority under state law, which includes excise taxes on employers measured by payroll expenses. The Court of Appeals therefore upheld the payroll expenses tax.

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Eviction Ordinance / Preemption

Seattle’s ordinance providing a defense to evictions between December 1-March 1 is not preempted by state law and does not violate the constitutional rights of landlords. Seattle’s ban on evictions during the COVID-19 civil emergency was also not preempted by state law. Seattle’s payment plan ordinance, which prohibited the accrual of interest on rent for one year after a civil emergency does conflict with state law and is invalid.

Rental Housing Association v. City of Seattle (6/21/2022) – This case involved a challenge to several Seattle ordinances related to eviction and accrual of interest on rent during an emergency. Seattle’s “winter eviction ban” provides that it is a defense to certain evictions if the eviction would result in the tenant having to vacate the premises between December 1 – March 1. The court held that the winter eviction ban is not preempted by state law and does not violate the constitutional rights of landlords.

Seattle’s “COVID-19 eviction ban” originated with an eviction order from the mayor which prohibited tenant eviction for failure to pay rent during the COVID-19 civil emergency. The mayor’s order expired February 28, 2022 but was extended by the Seattle City Council for an additional 6 months. This 6-month extension was challenged, and the court ruled that the extension was not preempted by state law. However, the appeals court held that it violated landlord procedural due process rights, because, unlike the mayor’s eviction moratorium, it did not provide landlords an opportunity to challenge a tenant’s self-certification of financial hardship during the civil emergency.

Finally, Seattle adopted an uncodified payment plan ordinance in May 2020. This occurred prior to the 2021 adoption of RCW 59.18.630 by the state legislature. The ordinance included a provision that bans the accrual of interest on rent due during or within one year after the emergency declaration. The court found that RCW 59.18.630 did not preempt Seattle’s payment plan ordinance. However, the court did strike down the provision in the ordinance that banned the accrual of interest on rent due during or within one year after termination of the civil emergency because it conflicted with a different state law (RCW 19.52.010, which provides that a creditor (such as a landlord) is entitled to interest when the debtor fails to pay the specified amount).

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Land Use Petition Act (LUPA) / Venue

Washington superior courts throughout the state have subject matter jurisdiction over petitions filed under the Land Use Petition Act regardless of which county in which the case arose.  

Glenrose Association v. Spokane County (6/7/2022) – A youth association proposed a sports complex which was opposed by a local neighborhood association. The Spokane County Building and Planning Department found the sports complex was an allowed use, and that finding was affirmed on appeal by the Spokane County hearing examiner.

The neighborhood association appealed to superior court by filing a LUPA petition, but it filed the petition in Lincoln County instead of Spokane County. The Lincoln County Superior Court dismissed the petition based on lack of subject matter jurisdiction. 

The Washington Court of Appeals reversed, ruling that under the Washington Constitution, superior courts have broad jurisdiction over original actions, including those initiated by an appeal from an administrative decision-maker, such as a LUPA petition. Any superior court in the state has subject matter jurisdiction to hear a LUPA petition. However, it is important to distinguish between subject matter jurisdiction and venue requirements. Litigants are still required to comply with applicable venue rules and statutes that govern which county superior court may adjudicate a case based on where the case arose or where the parties reside. But the concept of venue is not jurisdictional, so the superior court should have used venue rules to determine whether it could hear the LUPA petition and whether a change of venue was warranted.

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Public Records Act

Application of the dual purpose test to determine applicability of the attorney work product exemption for workplace investigative reports

Denney v. City of Richland (5/31/2022) – This case involved a Public Records Act (PRA) request submitted by a city employee for workplace investigation reports prepared by an HR consultant and an outside employment lawyer. The reports were prepared at the request of the city attorney for the purposes of investigating discrimination, harassment and retaliation complaints made by the employee; the city attorney retained the HR consultant and the outside counsel because she perceived that there was an imminent threat of litigation and she wanted to thoroughly investigate the complaints (as required by the city policy).

The city withheld both investigative reports as protected by attorney work product. If the reports qualify as work product, they are exempt under the PRA’s “controversy exemption” in RCW 42.56.290, which extends to materials protected from discovery pursuant to CR 26. Plaintiff Denney argued that the reports cannot constitute work product because they were prepared pursuant to city policy; the court rejected that argument, noting that protected documents can have a dual purpose. The fact that a document has a litigation and a nonlitigation purpose does not mean it fails to qualify for work product protection; rather, it just requires closer scrutiny.

In the dual purpose document context, the first step of the analysis is to apply the “because of” test to ask whether the document in question was really created because of anticipated litigation. To apply this test, one first asks whether the individual who prepared or ordered preparation of the document subjectively did so with the intent of preparing for litigation. If yes, then the question is whether the subjective anticipation of litigation was objectively reasonable. This objective test protects against applying the work product rule so broadly to allow parties to avoid discovery “by adopting routine practice whereby all documents appear to be prepared in anticipation of litigation.”

The second step of the dual purpose analysis is to determine whether the document would have been prepared in substantially the same form had there not been an expectation of litigation.

Here, the reports meet the dual purpose analysis and are protected as work product. First, the city attorney subjectively anticipated litigation in directing the reports be prepared and the reports were both designated as work product at their inception. The city attorney also communicated to the consultant and the attorney that the purpose of each investigation was potential litigation. The city attorney’s assessment of the prospect of litigation was objectively reasonable; Plaintiff Denney’s actions made it clear that his ultimate goal was litigation. The second part of the dual purpose analysis is also met, as the reports would not have been prepared in substantially the same form had the city not been concerned about litigation.

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Railway Easements & Superior Court Subject Matter Jurisdiction

Superior Court has subject matter jurisdiction over a quiet title action for a railroad easement because the court may properly hear issues of state property law over railroads.

City of Woodinville v. Eastside Community Rail (5/23/2022) – This case arose from a lawsuit the City of Woodinville filed in King County Superior Court to quiet title of a railroad easement that was created in 2009 by BNSF Railway Co (who then conveyed it to GNP Railway). Doug Engle, the Chief Financial Officer of GNP, executed a quit claim deed on behalf of GNY conveying the easement to his then-wife and his father; Engle was terminated that same month and then GNP creditors commenced involuntary bankruptcy proceedings. During these proceedings, the bankruptcy trusts and Engle (now acting on behalf of Eastside Community Rail or ECR) executed a Record of Transfer, documenting that ECR had purchased the easement from GNP in the bankruptcy, despite the quit claim deed to Engle’s relatives.

In a separate action, Snohomish County filed petitions with the Surface Transportation Board (STB) to revoke ECR’s ability to operate a railroad on the easement; STB denied the petitions concluding that the petitions regarding easement ownership should be approved by the appropriate court, not STB. Snohomish Co. appealed to the district court, who reversed and remanded. On remand, STB ultimately issued an order requiring ECR and Engle to return the rail line to GNP.

The city brought its quiet title action in King Co. Superior Court rather than the STB and ECR argued the trial court lacked subject matter jurisdiction over the quiet title action because of federal preemption. Citing to a previous STB decision, where the STB stated “although federal preemption is broad, the Board has consistently held that disputes concerning state contract and property law should be decided by the appropriate courts with expertise in those matters, rather than by the Board.” While recognizing that STB decisions and opinions are not binding upon this court, the court stated that they “would be remiss to ignore STB’s explicit and consistent holdings that state courts may properly hear issues of state property law over railroads.” The court then held that the superior court had subject matter jurisdiction to hear the quite title action. The court also held that because the city holds title to the real property burdened by the easement, it has standing to bring the action and there is a justiciable controversy.

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Railroad Track Relocation

Federal law preempts a local ordinance that purports to require a railroad relocate its tracks.

City of Seattle v. Ballard Terminal Railroad Co. (5/16/2022) – This case involved the City of Seattle’s attempts to construct the missing 1.4 mile link of the Burke-Gilman Trail. The issue is whether the city could enforce a 1997 operating agreement and a subsequent franchise ordinance that required the railroad to relocate a portion of its tracks to enable the trail’s construction. The trial court concluded that enforcement of the franchise ordinance (which gave Seattle the right to require the railroad to relocate its tracks in the missing link area) was preempted by the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA). The appellate court agreed, concluding that the city was expressly preempted from adopting a local ordinance with respect to routes of rail carriers because the ordinance directly conflicted with the exclusive federal regulation of railroads. In other words, the city cannot use its local regulation to require the railroad to relocate its tracks.

The appellate court then held that the operating agreement also did not give Seattle the right to require the railroad to move its tracks, stating that “the plain language of the operating agreement does not require BTRC to relocate its tracks in the missing link portion.”

Finally, the court considered whether the railroad was entitled to attorney fees and damages under Washington’s anti-SLAPP statute. The court held that the anti-SLAPP statute did not apply because Seattle did not sue for damages. Therefore, Seattle’s suit is not the type of action addressed by the anti-SLAPP statute

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Land Use Petition Act (LUPA)

Plaintiff failed to exhaust its administrative remedies when it did not appeal the city hearing examiner’s land use decision to the city’s appellate examiner and instead appealed directly to superior court.

Viking JV v. City of Puyallup (5/10/2022) – This is a LUPA case involving failure to exhaust administrative remedies. The city assessed Viking a $388,725 park impact fee as a condition of its commercial building permit. Viking paid the fee but submitted a letter protesting the fee to the development services director, pursuant to city code. The city requested supplemental information from Viking, but Viking did not respond so the director did not reduce the impact fee. Viking then appealed to the hearing examiner, pursuant to the city code. The hearing examiner denied the appeal. The city code provides for additional review by the city’s appellate examiner; Viking did not submit an appeal with the appellate examiner but instead filed a LUPA petition in superior court, challenging the hearing examiner’s decision.

The trial court agreed with Viking that the city’s two-tier hearing examiner system conflicted with RCW 35A.63.170 and held that Viking did not need to seek review by the appellate examiner before filing its LUPA. The appellate court disagreed, holding that Viking failed to exhaust its administrative remedies when it failed to appeal to the appellate examiner and, therefore, it lacked standing to bring the LUPA petition in superior court. In the opinion, the court harmonized 36.70B RCW and RCW 35A.63.170, holding that RCW 35A.63.170 authorizes the city council to adopt a hearing examiner system and chapter 36.70B allows permit review to involve a two-tiered approach of an initial and then an appeal decision, so long as the second tier involves a closed record review. Here, the appeal to the hearing examiner is the open record hearing and the appeal to the appellate examiner is the closed record review; this complies with state law. The initial hearing examiner decision is the city’s final administrative decision if not internally appealed, whereas the appellate examiner’s decision is the final land use decision that may only be reviewed by the superior court under LUPA.

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Firearm Preemption

State law preempted a city ordinance that required residents secure their firearms by a locking device to render them inaccessible and unusable to any person other than the owner or other lawful user.

Bass v. City of Edmonds (4/21/2022) – This case involved a preemption challenge to the city of Edmond’s gun storage ordinance that required Edmonds residents to securely store their firearms by a locking device that made the firearm inaccessible and unusable to any person other than the owner or other lawful user. The ordinance also made it a civil infraction if any person knows or reasonably should know that a minor, an at-risk person, or a prohibited person is likely to gain access to a firearm under another person’s control. At around the same time the city adopted its ordinance, Washington voters enacted an initiative that criminalized unsafe storage of firearms. Notably, that initiative did not mandate how or where a firearm must be stored.

After concluding that the plaintiffs at issue had standing to challenge the entire ordinance, the court identified a handful of areas in which a local government can control firearms:

• Barring employees from carrying concealed weapons while on duty, citing to Cherry v. Municipality of Metropolitan Seattle, 116 Wn.2d 794 (1991)
• Imposition of strict rules on a gun show held at a municipal convention center, citing to Pac. Nw. Shooting Ass’n v. City of Sequim, 158 Wn. 2d 342 (2006)
• Taxing firearms and ammunition, citing to Watson v. City of Seattle, 189 Wn.2d 149 (2017)
• Requiring shooting facilities to obtain operating permits, citing to Kitsap Co. v. Kitsap Rifle and Revolver Club, 1 Wn. App 2d 393 (2017)

However, the court noted that:

Taken together, these cases establish that RCW 9.41.290 broadly preempts local ordinances that directly regulate firearms themselves, but not necessarily ordinances that have an incidental effect on the use and enjoyment of firearms or exercises of municipal authority that do not establish rules of general application to the public.

The city argued that RCW 9.41.290 preempts regulation only of the nine areas listed in RCW 9.41.290: registration, licensing, possession, purchase, sale, acquisition, transfer, discharge and transportation of firearms and did not preempt regulation of storage and unauthorized access. The court rejected the argument, stating that the limitation is not consistent with the statute, which preempts the entire field of firearms regulation. Finding that that the city was acting in its regulatory, not proprietary, capacity, without explicit or implied authorization, the court held the ordinance to be an unlawful regulation of firearms and preempted by RCW 9.41.290.

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Emergency Powers

Recall charges against Governor Inslee based on the COVID-19 proclamations were legally and factually insufficient.

In re Recall of Inslee (4/28/2022) – This case involved the Supreme Court’s review of whether recall charges against Governor Inslee were legally and factually sufficient to move forward. In evaluating recall allegations, the court does not determine whether the allegations are true or false but rather stands as gatekeepers to ensure that elected officials are not subject to recall for frivolous reasons. The court held that the allegations were legally and factually insufficient and affirmed the superior court order dismissing the recall petition.

The first allegation reviewed was whether Proclamation 20-19, which prohibited landlords from filing an unlawful detainer action against a tenant for failure to timely pay rent, violated the constitutional separation of powers. The court noted that the proclamation was issued pursuant to the governor’s discretionary authority and that the proclamation did not usurp the power of the judiciary. While the proclamation limited the filing of unlawful detainer actions, it did not limit what the courts could do when such an action is before them.

The second allegation reviewed was whether Proclamation 20-28, which prohibited public agencies from conducting in-person meetings and suspended provisions of the Open Public Meetings Act (OPMA), violated the constitutional right to petition the government for redress of grievances and to peaceably assemble. The court noted the governor has the authority to suspend statutory obligations for the conduct of state business that would impede efforts to address a declared emergency unless that suspension conflicts with freedom of speech or assembly rights. Here, holding public meetings in person is not guaranteed by the First Amendment and the alternative remote means of accessing the meeting preserve the core tenets of the OPMA.

The third allegation reviewed was whether the proclamations that limited the size of in-person gatherings violated the constitutional right to peaceably assemble. This allegation also failed because the proclamations are content-neutral, tailored to serve a substantial government interest, and do not unreasonably limit alternative avenues of expression.

The final allegation reviewed was whether the original emergency proclamation was issued without a finding that a public disorder, disaster, energy emergency or riot existed. The court rejected this allegation, noting that the governor explicitly found the pandemic constituted a disaster and that COVID-19 clearly falls within the definition of disaster.

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Business and Occupation (B&O) Taxes

Interpretation of how to apply former RCW 35.102.130(b) with regard to B&O taxes and apportionment of service income.

Sound Inpatient Physicians v. City of Tacoma (4/5/2022) – This case involved a request for a refund for alleged overpaid business and occupation (B&O) taxes by Sound Inpatient Physicians (SIP) to the city of Tacoma. SIP performs services in Tacoma and has locations across the country. The case involved whether the taxes were correctly apportioned on SIPs gross receipts and whether the service income factor was incorrectly calculated and, therefore, whether SIP had incorrectly apportioned the taxes on its gross receipts. The case involves application of a former RCW and is quite involved with regard to how to interpret former RCW 35.102.130(3)(b) and how to calculate the service income factor. The court ruled in favor of the city and held that “former RCW 35.102.130(3)(b) provides equal alternatives for determining a taxpayer’s service income factor that must be selected based on which alternative provides the most fair apportionment of service income and not as rigidly as a cascading hierarchy.” It further held that “not taxable at the customer location” as used in the former statute refers to legislative authority, not constitutional authority. Finally, the court held that the former statute does not violate the federal commerce clause.

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Individual Commissioner Liability for Collective Actions of the Legislative Body

County commissioners individual bond liability is not available for action commissioners take collectively as a legislative body.

Stevens County v. Travelers Surety (3/31/2022) – The county auditor published an accountability audit finding that three transfers of funds under the county’s homeless plan were unconstitutional gifts of public funds or uses of restricted funds. The transfers had been approved by the county board of commissioners pursuant to a public vote. On behalf of the county, the prosecutor sued the commissioners in their personal capacities and each commissioner’s bond surety, claiming they were individually liable on their bonds for voting to approve unconstitutional gifts. The trial court agreed, entering a $130,326.25 judgment against the commissioners and their sureties; as a result of the judgment, the commissioners were statutorily removed from office.

On appeal of the commissioners, the appeals court reversed. The court found that the commissioners were bonded in their individual capacity, which covered actions taken by the commissioners as individuals, not collective actions taken by the legislative body. Under state law, only the legislative body can make official appropriations, not individual commissioners. Since the approval of the homeless fund expenditures were taken by the commissioners as a legislative body, the commissioners were not liable under the terms of their official bonds. The proper remedy in the event of an unconstitutional gift of public funds is to receive funds from the recipient or potentially recall an elected official based on an unconstitutional discretionary or legislative act. County commissioners cannot be sued personally for official legislative actions. Further, since they commissioners did not directly handle public funds, the constitutional requirement for strict accountability for moneys that come into their possession did not apply.

The court reversed the trial court and remanded the case with instructions to vacate the judgment and grant summary judgment in favor of the commissioners. Recognizing that, while the disposition “cannot remedy the fact that the three commissioners were improperly removed from office,” nonetheless future commissioners can be assured they won’t be removed from office because a court disagrees with the legality of their legislative actions.

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Public Records Act (PRA)

The PRA prohibits public disclosure of a public employee’s month and year of birth, unless the requestor is a member of the news media.

WEA v. DRS (3/28/2022) – Involved two PRA requests submitted by the Freedom Foundation for the full names and full dates of birth for various public employees. The state agencies receiving the requests notified the affected labor unions; the labor unions secured an injunction prohibiting release. On appeal, the unions argued that two provisions in the PRA exempted the information from public disclosure:

1. Former RCW 42.56.250(8) (which was adopted after the PRA requests had been submitted), exempts an employees’ month and year of birth included in the personnel file; and
2. RCW 42.56.590(1), which requires agencies that own, maintain or license personal data to notify Washington residents when their personal information was accessed in a data security breach (RCW 42.56.590(1)). The unions argued this amendment defined personal information to include the name linked to the full date of birth, which means that RCW 42.56.230(3) prohibited the release of this information as it violated the employees’ right to privacy.

The court first held that former RCW 42.56.250(8), which was adopted after the PRA request had been submitted, did apply retroactively to this request as the “triggering event” in this situation is the agency’s release of requested records, not the submittal of the PRA request. While a member of the news media can nonetheless receive the records, the question of whether the Freedom Foundation is a member of the news media was remanded to the trial court for a determination.  

The court also held that the RCW 42.56.230(3) does not exempt public employee birthdates from disclosure.

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Open Public Meetings Act (OPMA)

The OPMA does not apply when a state agency undertakes rulemaking under the Administrative Procedure Act (APA).

West v. WDFW (3/22/2022) – Involved the question of whether a state agency’s rulemaking process is subject to the Open Public Meetings Act (OPMA). The court noted that the APA, which applies to state agencies, provides the procedure for agency rulemaking, from inception to publication, including notice, public participation and publication of final rules. The APA does not mention the OPMA and the OPMA specifically indicates that it shall not apply to matters governed by the APA. Therefore, rulemaking under the APA is exempt from the requirements of the OPMA.

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Emergency Powers / Eviction Moratorium

Governor’s emergency moratorium on residential evictions in response to COVID-19 pandemic was constitutional and within the scope of the Governor’s emergency authority.

Gonzales v. Inslee (2/23/2022) – In response to the COVID-19 pandemic, the Governor declared an emergency and issued an emergency proclamation that placed a temporary moratorium on most residential evictions. The emergency proclamation took effect in March 2020 (Emergency Proclamation 20-19) and was revised and extended several times until it expired on June 30, 2021. In 2021, the Legislature adopted E2SSB 5160 which addressed landlord tenant issues arising from the COVID-19 pandemic. The Governor then issued Emergency Proclamation 21-09 as a temporary bridge between the expiration of the eviction moratorium and the implementation of E2SSB 5160. Emergency Proclamation 21-09 expired on October 31, 2021.

The plaintiffs are landlords who challenged the Governor’s authority to issue the Emergency Proclamation 20-19 series. The Washington Court of Appeals found that the Governor had statutory authority to prohibit residential evictions under RCW 43.06.220(1)(h).  In addition, the Court of Appeals ruled that RCW 43.06.220(1)(h) is not an unconstitutional delegation of authority from the Legislature to the Governor. The Court of Appeals also rejected the plaintiffs’ remaining arguments that the Emergency Proclamation 20-19 series was: (1) a violation of separation of powers and denial of access to the courts; (2) a taking of property without just compensation; and (3) an impairment of their contractual relationship with their tenants.

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Ballot Box Statute

Since the specific reimbursement statute in RCW 29A.04.430 controls over the general unfunded mandate statute in RCW 43.135.060, the State must only pay its proportionate share for the costs of compliance with the ballot box statute in RCW 29A.40.170.

WSAC v. State (1/27/2022) – In 2017, the legislature adopted the ballot box statute (RCW 29A.40.170) which requires that counties install a minimum of one ballot box per 15,000 registered voters in the county and a minimum of one ballot drop box in each city, town, and census-designated place in the county with a post office. The estimated cost to implement the program was over $1.2 million and the legislature did not appropriate funding for implementation. The statute permits counties to seek reimbursement from the State, cities, towns and districts for their proportionate share of the costs; the purpose of the reimbursement is to ensure the county is not responsible for costs involved in the holding of a city, town, district, state or federal election.

Certain counties and the Washington State Association of Counties (WSAC) filed suit, claiming the unfunded mandate statute, which requires full reimbursement for new or increased responsibilities, required the State fully reimburse them for the costs. The trial court agreed. On direct review, the Supreme Court held that the partial reimbursement under the more specific ballot box statute controls over the general unfunded mandate statute, so county reimbursement is limited to the State’s proportionate share. The Court also held that a subsequent amendment to the ballot box statute was constitutional and that the counties do not have a vested right to full reimbursement.