Washington State Court Decisions
November 1993 to August 2008
Updated 8/15/2008
- Washington State Supreme and Appellate Court Decisions
- Washington State Court Decisions published within the last 90 days
Washington State Court Decisions Affecting Cities, Towns and Counties
The following decisions are in reverse chronological order: (This is not a complete list of all new court decisions that affect cities, towns and counties in the State of Washington, but a selection of highlights.)
In re Recall of Davis, ___ Wn. 2d ___, (8/14/2008) [Recall of officer] A port commissioner signed an agreement providing for severance pay for the port's departing chief executive officer. A citizen sought to recall the commissioner for taking this action outside a public meeting. The Court inferred from the record that the commissioner understood her duties as a port commissioner and the legal necessity of voting in public session before potentially obligating the port in any monetary agreement, and, for purposes of recall, intentionally acted outside the scope of these duties by signing an agreement. The Court further found that the recall petition was legally sufficient in charging the commissioner with an act of malfeasance by signing the agreement which had the potential effect of obligating the Port of Seattle to pay the outgoing employee. Additionally, the Court found that the payment was not voted on or approved by the port at a regularly scheduled public hearing and thus concluded charge one of the ballot synopsis is legally sufficient.
Thurston County v. Western Washington Growth Management Hearings Board, ___ Wn. 2d ___, (8/14/2008) [GMA]. A party may challenge a county's failure to revise a comprehensive plan only with respect to those provisions that are directly affected by new or recently amended GMA provisions, meaning those provisions related to mandatory elements of a comprehensive plan that have been adopted or substantively amended since the previous comprehensive plan was adopted or updated, following a seven year update. If a county fails to revise its comprehensive plan to comply with new or amended GMA requirements, a party must be able to challenge the comprehensive plan or GMA amendments. A party may challenge a county's failure to revise its UGA designations during a 10 year update only if the OFM population projection for the county changed. A county's UGA designation cannot exceed the amount of land necessary to accommodate the urban growth projected by OFM, plus a reasonable land market supply factor. "[A] market factor represents the estimated percentage of net developable acres contained within a UGA that, due to idiosyncratic market forces, is likely to remain undeveloped over the course of the twenty-year planning cycle." A Board should not reject urban densities based on a bright-line rule for maximum rural densities, but must consider local circumstances and whether these densities are not characterized by urban growth and preserve rural character. The GMA does not dictate a specific manner of achieving a variety of rural densities.
Futurewise v. W. Wash. Growth Mgmt. Hearings Bd. ___ Wn. 2d ___ (7/31/2008) [GMA and Shorelines Management Act] Does the Growth Management Act apply to critical areas located in a city's shoreline master plan until the city updates its master plan under the Shorelines Management Act? No. The state legislature made it clear that critical areas within the jurisdiction of the Shorelines Management Act (SMA) shall be governed only by the SMA.
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, ___ Wn. 2d ___, (7/31/2008) [Public records disclosure] The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated1 allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.
West v. Port of Olympia, ___ Wn. App. ___ (7/21/2008) [Public disclosure] The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the “deliberative process” exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.
O’Neill v. City of Shoreline, ___ Wn. App. ___ (7/21/2008) [Public disclosure] A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.
Group Health Cooperative v. City of Seattle, ___ Wn. App. ___ (7/21/2008) [Business and occupation taxes] Are premium payments made by customers to the Cooperative (a HMO), as well as payments made by the federal government from the Federal Employee Health Benefits Fund (FEHBA) subject to the city’s business and occupation tax? RCW 48.14.0201(7), precludes Washington municipalities from assessing local taxes on health care premium payments made to HMOs. The City had contended that its method of calculating the "taxable portion" of Group Health's premium revenue was not, in fact, a tax on health care premiums because some portion of Group Health's premium revenue is necessarily spent on the direct provision of health care services by Group Health employees. The court found that the legislature did not intend to preempt the ability of municipalities to impose excise or privilege taxes on "health care services directly delivered" by HMOs that are not covered by the prepaid benefit plans purchased by HMO customers. Further, the FEHBA provides that neither states nor municipalities may impose any tax on FEHBF payments.
Swineheart v. City of Spokane, ___ Wn. App. ___ (7/15/2008) [Recreational immunity statute] The plaintiff was injured when he slid down a large slide into a sawdust pit that did not have adequate sawdust. He sued for his injuries. The city argued that it was immune from liability under the recreational immunity statute. The plaintiff argued that the lack of fill material was a latent condition, which took the injury outside the immunity statute protection. On appeal the court held that the condition of the playground fill was obvious to park visitors. The City was entitled to the benefit of immunity under the recreational use statute.
City of Spokane Valley v. Spokane County, ___ Wn. App. ___ (7/15/2008) [Disposition of county roads upon annexation of area into city] Spokane County purchased railroad right-of-way, dedicated the land to highway purposes, and developed a road on a portion of the right-of-way. This area became part of the City of Spokane Valley upon the incorporation of that city. By statute, county roads revert to a city upon incorporation. Does a city receive only the improved roadway, or the entire right-of-way? The court held that the unimproved right-of-way does not meet the definition of "county road" and, thus, did not revert to the City under RCW 35.02.180. Additionally, it held that the right-of-way fell within the exemption under RCW 36.87.090 for properties purchased by deed.
City of Port Angeles v. Our-Water Our-Choice, ___ Wn. App. ___ (7/15/2008) [Power of initiative] The city determined that fluoride should be added to its water; a citizens committee objected and filed an initiative to prohibit the addition of fluoride. The trial court rejected the initiative, which decision was appealed. The court of appeals affirmed the trial courts decision. First the court concluded that a preelection review of the initiative was permitted since a local initiative must be consistent with federal and state law. The court held that the issue at hand was administrative in nature and related to a power given to the city council, rather than "to the city," and thus was not subject to an initiative.
Citizens Alliance for Property Rights v. Ron Sims,___ Wn. App. ___ (7/7/2008) [Does county's limitation on land clearing of rural property violate RCW 82.02.020?] The county adopted clearing and grading limitations that, for rural residential properties, could limit clearing and grading up to 50 percent of the property. Citizens Alliance challenged the limitations, arguing that they amounted to a violation of RCW 82.02.020. While the county prevailed in superior court, the decision was reversed on appeal. The court concluded that the ordinance imposes clearing requirements that are an in kind indirect "tax, fee, or charge" on development, in violation of the statute and that the county failed to prove that the regulation fell within one of the recognized statutory exceptions. There was no persuasive claim that the variation in clearing restrictions provided by the county ordinance proportionally related to proposed development, a necessary element to satisfy the statutory exception. The county ordinance imposes a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development.
Vergeson v. Kitsap County, ___ Wn. App. ___ (7/1/2008) [Negligence; failure to remove arrest warrant from files] The plaintiff was arrested for an arrest warrant , one that had been issued to an alias, that had been quashed by a court. She sued, arguing that the county (and a city) had been negligent in its failure to remove the warrant from its record system. On appeal, the court held that the public duty doctrine applied and the plaintiff failed to establish an exception; and, in the alternative, even if the County and City owed an individualized duty to the plaintiff, she failed to show that the County and the City did not exercise ordinary care.
Renner v. City of Marysville, ___ Wn. App. ___ (6/30/2008) [Claim statute] Renner was fired by the city. He sued, arguing wrongful termination. Prior to filing his lawsuit, however, he filed a claim with the city, as required by RCW 4.96.020, on a form supplied by the city. Later the city challenged Renner's claim, arguing that he had failed to list his place of residence for the six months prior to filing his claim, and Renner failed to state the amount of damages sought. The court rejected the city's arguments, finding that Renner had filled out the form he had been supplied by the city, and the city itself, through its personnel records, could determine his place of residency. As to the amount of damages, the court determined that the city would be able to generally determine Renner's damages, based upon its personnel records.
Coffey v. City of Walla Walla, ___ Wn. App. ___ (6/26/2008) [Appeal of comprehensive plan amendment] The city amended its comprehensive plan but did not change its zoning for a newly annexed area. The neighbors appealed the comprehensive plan amendment to superior court. On appeal the Court held that the superior court lacked jurisdiction to consider the appeal; the appeal should have been made to the Growth management Hearings Board.
Comcast v. City of Seattle, ___ Wn. 2d ___, (6/26/2008) [Taxation of cable services] Comcast provides high-speed Internet service within the city. The city maintained that it could tax such service as a telephone utility, imposing a six percent tax. Comcast disagreed, and the Court held that under the plain language of RCW 35.21.717 (a city or town may not impose any new taxes or fees specific to internet service providers) the city could not impose the telephone utility tax rate. Network telephone service does not include cable Internet service. The Court added "a telephone business offering Internet services cannot be charged a telephone tax for those services, but may still be charged a telephone tax for providing telephone services -- just as Comcast may still be charged a cable television tax for providing cable television."
Southwick v. Seattle Police Officers John Does, ___ Wn. App. ___ (6/23/2008) [1983 Action] Southwick was arrested by the Seattle Police. Southwick may have been injured during the time of his arrest, but the extent of his injury (collapsed lung) was not known for several days. Southwick sued the city under a federal 1983 action. The lawsuit was not filed until after the running of three years; prior to the filing of the lawsuit, however, the plaintiff filed a claim against the city and then waited 60 days to file suit. The lawsuit was dismissed as being untimely. Southwick contended that the statute of limitations was tolled during the 60-day claim filing period. On appeal the court affirmed the decision dismissing the lawsuit. There is no requirement that a claim be filed for a 1983 action, followed by a 60-day waiting period. Accordingly, the statute of limitation was not tolled and the suit failed for being filed after the statute of limitations had run.
City of Wenatchee v. Owens, ___ Wn. App. ___ (6/19/2008) [Authentication of an ordinance] The city's gambling tax ordinance, although it was signed by the mayor and city attorney, filed with the county, and codified, was not authenticated by the city clerk. Owens challenged the validity of the ordinance. The court held that the City clerk's duty to attest to or authenticate the Ordinance, pursuant to RCW 35A.12.130, was entirely ministerial. As a result, the clerk's failure to comply with the attestation requirement of RCW 35A.12.130 did not invalidate the Ordinance.
Humbert v. Walla Walla County, ___ Wn. App. ___ (6/19/2008) [Appeal of hearing examiner's decision on conditional use permit] A hearing examiner approved a conditional use permit for the operation of a rock quarry after extending a hearing to receive comments from the state, approving agreed to conditions between the applicant and the state, and limiting the approval to the first phase of the quarry operation. The applicant appealed. The court upheld the examiner's decision, concluding that the examiner could extend the time of the hearing to obtain comment from the state. It denied the appeal as to the conditions imposed, finding that the examiner was merely approving conditions the applicant had agreed to, applying the invited error doctrine; there also were specific impacts that would justify the conditions, regardless of the invited error doctrine. It was not error to approve the first phase of the operation; the examiner could have denied the project altogether. Conditions were only agreed to for the first phase and the applicant did not provide mitigation plans for the future phases.
Milestone Homes v. City of Bonney Lake, ___ Wn. App. ___ (6/17/2008) [Subdivision approvaL] Milestone sought to subdivide property it owned into 25 lots. However, the property it owned did not have sufficient area to make the proposed division and still meet city density requirements. To address this problem, Milestone included lots that were owned by others and had previously been approved as part of another subdivision. The city council did not approve the subdivision, but the superior court ruled in Milestone's favor. After appeal, the court reversed, holding that the city's ordinance was not ambiguous and that the proposed plat did not meet the city's code. Even if the code was ambiguous, the court would have ruled in the city's favor, giving preference to the council's interpretation and its intent to maintain larger lot sizes.
Keep Watson Cutoff Rural v. Kittitas County, ___ Wn. App. ___ (6/5/2008) [LUPA appeal] Keep Watson Cutoff Rural ("KWCR") filed a LUPA appeal against the county's decision to give a developer conditional approval to proceed with a cluster plot. RCW 36.70C.070(4) requires a party filing a LUPA petition attach a copy of the decision being appealed to the petition.; KWCR failed to do this and the county moved to have the appeal dismissed. A superior court judge granted the motion to dismiss, citing lack of jurisdiction because of KWCR failure to attach a copy of the decision being appealed. On appeal, the court of appeals reversed, concluding that while service and filing requirements are jurisdiction, the elements of a LUPA petition, even though statutorily required, are not jurisdictional requirements that divest a superior court of
jurisdiction if not met. Additionally, KWCR had substantially complied with the requirements.
Pierce County v. State of Washington ___ Wn. App. ___ (5/28/2008) [Mental health care] The Court holds that the State Department of Social and Health Services (DSHS) is financially responsible for long-term care patients and that the DSHS incorrectly withheld liquidated damages from payments to the County when the County exceeded the bed space Western State Hospital had allocated to it. The Court also held that 2006 legislation (amendments to chapters 71.05 and 71.24 RCW) was constitutional. The Court also held that the County cannot count Western State Hospital's patients in meeting its 85 percent short-term care requirement and that the DSHS did not force the County to use Medicaid funds for non-Medicaid patients. Finally, the Court held that the County was entitled to prejudgment interest on the withheld liquidated damages award, but not the long-term care damages. (This is a long---70 pages---and somewhat complicated decision; interested persons are encouraged to review the case itself.)
G-P Gypsum Corporation v. Washington State Department of Revenue, ___ Wn. App. ___ (5/20/2008) [Application of city use tax to natural gas]. Gypsum acquired natural gas at several at several locations outside of Tacoma for use within the city of Tacoma. Tacoma's utility tax was applied to Gypsum's purchase of gas. Gypsum argued that it should not be taxed for the use of the gas within Tacoma, since it first exercised dominion and control over the natural gas outside the city. The state argued that the tax applied in Tacoma, since that was the location where the gas was actually used in the manufacturing process. Citing the statute, the court held that the tax applied at the location where Gypsum first exercised its control over the tax, and that was outside the city.
West v. Thurston County, ___ Wn. App. ___ (5/13/2008) [Public disclosure] West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county's deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.
Matia Contractors v. City of Bellingham, 144 Wn. App. 445, (5/5/2008) [Claims statute] While there is a more recent court of appeals case to the contrary, the court followed the supreme court decision, Wilson v. City of Seattle, 122 Wn.2d 814 (1993), and held that the claim filing statute, chapter 4.96 RCW, applies only to tort claims. The court's decision reversed the trial court, which had concluded, based upon an earlier court of appeals decision, that decided that the claim filing requirements of chapter 4.96 RCW apply to all claims for money damages. Until changed by the supreme court, the holding in the Wilson decision stands.
Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (4/24/2008) [Public records disclosure] Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.
Lawson v. City of Pasco, 144 Wn. App. 203 (4/24/2008) [Code enforcement/land use regulation] Lawson allowed recreational vehicles to park in his residential mobile home park, contrary to city ordinance. Lawson was issued a violation notice and was ordered to remove them from his park. Lawson admitted to being in violation of the city ordinance, but
maintained that state law -- the Manufactured/Mobile Home Landlord- Tenant Act, ch. 59.20 RCW -- preempted the city ordinance because the state law authorizes, if not requires, recreational vehicles used as a primary residence to be allowed in mobile home parks. While the state legislature intended to act in the field of regulating mobile home park landlord-
tenant relationships, it did not wholly preempted local action in this field. The legislature expressly conferred concurrent jurisdiction to local municipalities in the field of regulating landlord-tenant compliance with ordinances; the state act did not preempt the local ordinance. The court also found that the ordinance's operation did not conflict with the state law; each could operate distinctly without inconsistency. The ordinance was not unconstitutional.
Lallas v. Skagit County, 144 Wn. App. 114 (4/21/2008), [Torts: quasi-judicial immunity] A deputy sheriff, removing a prisoner from the courtroom upon a judge's request, chose not to handcuff the prisoner. The prisoner bolted, ran, and collided with a court security officer, injuring the officer. The officer sued the county, arguing that the deputy sheriff was negligent by not handcuffing the prisoner. Was the deputy immune from liability because of quasi-judicial immunity? The court concluded that the deputy was not. Quasi-judicial immunity does not shield the deputy or her employer where the challenge was to the manner in which the order was carried out rather than the substance of the judge's order itself, which would have been immune.
Storedahl & Sons v. Clark County, 143 Wn. App. 920 (4/8/2008) [Land use] A hearing examiner approved of a rezone, and set out detailed findings of fact along with information on how the rezone criteria had been met. On appeal to the board of county commissioners, the rezone was overturned, although the board did not change the facts set out by the hearing examiner. On appeal, the court overturned the commissioners' decision. The Board failed to provide a statement listing the facts it found showing the appealed decision did not comply with applicable approval criteria. The court found that the hearing examiner's findings were binding, because the Board did not disagree with them. Because the Board did not disagree with any fact found by the examiner in determining that the rezone was consistent with the comprehensive plan and policies, the examiner's facts became verities and Storedahl was entitled to the requested rezone.
Kitsap County v. Smith, 143 Wn. App. 893 (4/8/2008) [Privacy] A county employee recorded numerous conversations with employees and citizens without the other parties' consent or knowledge and removed documents from his county office. The County filed a complaint for declaratory relief, injunctive relief, and damages, arguing that the employee "willfully and unlawfully recorded private and confidential conversations of County employees" without their knowledge or consent in violation of the Privacy Act, chapter 9.73 RCW, and that the employee had "willfully and unlawfully removed public records within the meaning of RCW 40.14.010 and RCW 42.56.010(2) from Kitsap County's custody and control." The trial court denied the declaratory judgment request, as well as the request for injunctive relief and damages for the asserted unlawful removal and retention of county public records. The court, on appeal, reversed and held that the Privacy Act issue involves a matter of major public importance and that there were issues of material fact related to the removal and retention of county records. The Court remanded the case to the trial court for the determination of whether a conversation with a public employee is a "private" or public conversation under the Privacy Act, 9.72 RCW and to determine who owns a public employee's own copies of work-related documents.
York v. Wahkiakum School District, 163 Wn. 2d 297 (3/13/2008) [Random drug test of student athletes] Drug and alcohol abuse in schools was identified as a serious problem. To help combat the problem, the school district instituted a random drug test program for its student athletes. Athletes were subject to periodic, random urine tests. If tests proved positive, the student could be removed from student athletics, but the test results would not be reported to the police or be included in the student's record. A challenge was brought, arguing that such testing was prohibited under the state constitution (federal cases have upheld such testing under the federal constitution). The Supreme Court held that such testing was not performed under authority of law, that there was no "special needs" exception that would allow such testing without a warrant, and that the program violated article I section 7 of the state constitution.
Storedahl Properties v. Clark County, 143 Wn. App. 489 (3/11/2008) [Stormwater regulation: tax or fee] Under the federal Clean Water Act, due to the its population, the county was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit to deal with stormwater pollution. The county adopted a series of regulations to deal with stormwater and imposed fees to help pay for the costs of implementation. The plaintiff, Storedahl, challenged the fees, arguing that they were in fact taxes. Both the superior and appellate court disagreed. The fees satisfied the three-part test adopted by the court in Covell v. City of Seattle, 127 Wn.2d 874 (1995). The charge was found to be regulatory, a fact specifically noted in the language of the legislation. The proceeds of the fee are put in a special fund and used exclusively for various elements of the regulation. There was a relationship between the fee charged and the property owner's contribution to the stormwater problem.
Ventenbergs v. City of Seattle, 163 Wn. 2d 92 (2/21/2008) [Solid waste disposal] May a city contract exclusively with two solid waste disposal firms, to the exclusion of other firms? Yes. The police power given cities by the constitution allows them to provide for and regulate solid waste disposal. Seattle's contracts for solid waste disposal with Robanco and Waste Management did not constitutional privileges and immunities provisions granted by the constitution because solid waste handling is governmental in nature, and the city's actions did not deny a fundamental right given to citizens. The regulations were reasonable. Bidding was not required under RCW 35.21.156.
Washington Beef v. County of Yakima, 143 Wn. App. 165 (2/14/2008) [Valuation of property for tax purposes] This case reviews the valuation of a beef slaughter, fabrication and storage facility for tax purposes. The court reviews the various ways that property can be valued, e.g., capitalization of income and market value, and concludes that the setting the value of assets for the purpose of assessing property taxes is more of an art than a science, and gave great deference to the conclusions reached by the county assessor. An excellent discussion of valuation methods.
Champagne v. Thurston County, 163 Wn. 2d 69 (2/14/2008) [Personnel - Wage Administration] Thurston County pays its employees for nonregular wages (e.g., overtime wages) at the close of the month subsequent to when the nonregular wages were earned. Champagne sued, arguing that the process violated the Washington Minimum Wage Act (WMA), chapter 49.46 RCW, wage payment act (WPA), chapter 49.48 RCW , and wage rebate act (WRA), chapter 49.52 RCW. The court concluded that the WRA was not violated because the the County did not act willfully; there was a bona fide dispute over payment of wages. There was no cause of action under the the MWA because the county had actually paid all wages due the
employees. There was no action under the WPA since that act only provides for relief where an employer has made improper deductions at the time of termination
Fitzpatrick v. Okanogan County, 143 Wn. App. 288 (1/22/2008) [Inverse Condemnation) The plaintiffs suffered property damage following a flood; they alleged that the damage was result of the construction of a dike. The trial court dismissed the lawsuit and the plaintiffs appealed. In a split decision, the appeals court reversed and returned the case for trial. The common enemy rule, which allows landowners to repel surface waters to the detriment of their neighbors, does not apply when the landowner obstructs a watercourse or natural drainway or when the landowner obstructs riparian water from entering a flood channel. RCW 86.12.020, which authorizes counties to construct and maintain dikes and levees to protect against floods, does not provide immunity since the complaint alleges inverse condemnation.
Resident Action Council v. Seattle Housing Authority, 162 Wn. 2d (1/3/2008) [Constitutional law: Speech] The Housing Authority adopted a rule prohibiting the placement of signs on the outside of the doors to residential housing units. A lawsuit was filed and the superior court held the rule unconstitutional as a violation of both the state and federal constitutions. On appeal a divided Supreme Court affirmed. The Court concluded that the Housing Authority had failed to meet its burden of justifying a restriction on speech. The Housing authority had argued that its rule was designed to avoid the cost of refinishing doors damaged by residents' signs. The Court noted that the Housing Authority could impose restrictions that would prevent damage to its doors by requiring the use of non-damaging materials. A total ban on signs was unnecessary to support the claimed interest. Aesthetics could not justify the ban either, as other restrictions were possible instead of a total ban. The ban violated the First Amendment protection of speech.
American Safety Casualty Insurance v. City of Olympia, 162 Wn.2d 762 (12/27/2007) [Contracts] The plaintiff insurance company failed to file a suit within the 180 day limit set out in its contract. The insurance company argued that the city, by agreeing to negotiate, had waived its ability to require compliance with the contract deadline. The Court held in the city's favor. Implied waiver of contractual rights requires unequivocal acts, and here the City's acts were, at most, equivocal. Agreeing to enter into negotiations, without more, does not constitute an implied waiver of contractual rights.
Soter v. Cowles Publishing, 162 Wn. 2d 716 (12/27/2007) [Public disclosure] Following the death of a student, the school district contacted its attorney, believing that litigation might ensue. The attorney hired an investigator who interviewed witnesses in anticipation of a lawsuit. A claim against the school district was ultimately compromised. Cowles Publishing made a records request for various materials associated with the case, most of which had been prepared wither by the school district's attorney or by the investigator acting on the attorney's behalf. The school district sought guidance from superior court to determine whether the records had to be furnished to the paper. A divided Court concluded that the requested records were relevant to a controversy to which the school district was a party and the records would not have been available under the civil rules of pretrial discovery because they were protected by either the work product doctrine or they reflected attorney-client privileged communications. Also, the plain language of RCW 42.56.540 allows agencies to seek a judicial determination as to whether a requested public record must be disclosed. However, if an agency has improperly denied a requester access to a public record, per diem penalties apply for everyday that access was denied.
Woods v. Kittitas County, 162 Wn.2d 597 (12/20/2007) [Land use/LUPA] The Court holds that the superior court does not have subject matter jurisdiction under LUPA to decide whether a site-specific rezone complies with the GMA. The superior court has jurisdiction only to determine whether a site-specific rezone complies with the county's comprehensive plan and/or development regulations. An adjacent property owner must challenge a local jurisdiction's site-specific decisions by filing a LUPA petition in superior court. But a challenge to a site-specific land use decision can be only for violations of the comprehensive plan and/or development regulations, but not violations of the GMA. The Court also found that the rezone was not invalid because the county continued to use preexisting zones and applied those zones to individual properties in rezones rather than implementing county-wide development regulations after adopting its comprehensive plan. The Court also resolved other LUPA-related issues in support of the rezone.
Lindell v. City of Seattle, 162 Wn. 2d 474 (12/13/2007) [Liability of city to firefighterainee injured during training] Lindell died of injuries he sustained while training to be a member of the mounted police. A suit was brought against the city, alleging the city's negligence. Lindell's estate sought an amount in excess of the amount awarded under worker's compensation. The Court held that Lindell's "right to sue" provided for under LEOFF did not violate the city's sovereign immunity, and it likelwise did not violate the privileges and immunities clause under the constitution. For purposes of LEOFF, Lindell was covered by LEOFF, even though he was in training.
Hegwine v. Longview Fibre Company, ___ Wn. 2d ___ (11/29/2007) [Employment discrimination on account of pregnancy] Neither the Washington Law against Discrimination (WLAD) nor its interpretative regulations call for an accommodation analysis in pregnancy related employment discrimination cases. The court will not impose such an accommodation analysis where the legislature has not seen fit to do so. A company can refuse to hire based on business necessity; Longview Fibre's reasons were pretextual; if failed to prove a business necessity. Fibre failed to show that refusing to hire due to a woman's pregnancy was essential to the purposes of position sought Fibre violated RCW 49.60.180(4) and WAC 162-12-140(3)(n), when it inquired as to Hegwine's pregnancy status as part of its hiring process.
Lindeman v. Kelso School District, ___ Wn. 2d ___ (11/15/2007) [Public disclosure] Two students engaged in an altercation on a school bus. The bus was equipped with a video tape system. One of the student's parents requested a copy of the tape; the school district refused and the trial court and court of appeals agreed that the tape was exempt from disclosure. The supreme court disagreed and ordered the release of the tape. The student file exemption would apply only if the District establishes the videotape is both "personal information" and "in any files maintained for students." The district failed to prove that the video tape met that criteria.
City of Spokane v. Rothwell, 141 Wn. App. 680 (11/8/2007) [Municipal Court Judges] Spokane contracts with Spokane County for judicial services provided by a municipal department of the district court. The judges assigned to the municipal department are all district court judges elected county-wide, rather than just by city residents. The judges also rotated through the municipal department. The court of appeals concluded that the municipal department lacked jurisdiction over a city case since position of municipal court judge was elected in a county-wide election of a district court seat rather than by city voters to a municipal court position, contrary to RCW 3.46.063(1) and RCW 3.46.070.
Futurewise v. Central Puget Sound Growth Management Hearings Board, 141Wn. App. 202 (10/16/2007) [Growth Management/designation of agriculture land] Pierce County, when amending its comprehensive plan, amended the plan to exclude land parcels less than five acres from lands designated as agricultural lands of long-term commercial significance. The county's decision was based upon the argument that soil sampling for smaller parcels was not reliable and upon the predominant size of farms within the county. Futurewise challenged the county's designations. On appeal, the court concluded that the county could categorize land by size but that it erred in determining that a minimum five-acre parcel size correlated to soil sample accuracy. Nevertheless, the court agreed with the county's actions based upon the county's reliance on reports of the predominant parcel size of a small farms. The predominant size of farms, the court concluded, was instructive on determining whether land has "long-term commercial significance" for agriculture.
Abbey Road Group v. City of Bonney Lake, 141 Wn. App. 184 (10/9/2007) [Vested Rights] Abbey Road sought to construct a large condominium project. Although it had spent considerable money for the initial planning of the development, it had only filed an application for site development plan review when the city council rezoned the area (which had the effect of prohibiting the condominium construction). The court held no development rights vested when Abbey Road filed an application for site development plan review and that Bonney Lake's development scheme was not so burdensome that it unconstitutionally frustrated vesting rights under ordinances and building codes in effect when a building permit is filed, nor did it conflict with statutory or case law controlling vesting of development rights.
Biggers v. City of Bainbridge Island, ___ Wn. 2d. ___ (10/11/2007) [Shoreline Management/Moratoria] May a city place a (continuing) moratorium on permit applications for shiorelines development? No. There is no state statutory authority for the City's moratoria or for these multiple extensions. This is a usurpation of state power by the local government that
disregards article XVII, section 1 of the Washington Constitution, which expressly provides that shorelines are owned by the state, subject only to state regulation. The City is not authorized to adopt moratoria on shoreline development arising out of its police powers under article XI, section 11 of the Washington Constitution, which limits local government to regulation "not in conflict with general laws." (The court was divided on this case; four justices signed the majority opinion and one concurred in the result.)
Tukwila School District v. City of Tukwila, 140 Wn. App. 735 (9/24/2007) [Taxes and fees: Stormwater utility charge] The school district challenged the city's charge for storm and surface water utility charge, arguiong that it was an unlawful tax. The district's complaint was dismissed and an appeal was brought. On appeal the court the charge is not a tax under the Covell v. City of Seattle factors because its purpose is limited to protecting property owners and local water sources from harm caused by storm and surface water runoff, the City has segregated the funds and uses them only for this purpose, and the fee is roughly proportional to the amount of impervious surface on the property being taxed.
City of Bonney Lake v. Abbey Road Group, ___ Wn. App. ___ (9/18/2007) [Land use/vesting] Abbey Road sought to construct a large condominium project. Abbey Road had submitted a development plan application for city review, but not a building permit application, when the city rezoned the property involved in the project to a zone no longer consistent with the project. Abbey Road appealed to a hearing examiner, arguing that its application for plan review had vested the project under the former zoning; the hearing examiner disagreed. Abbey Road filed a LUPA appeal with superior court, and the court overturned the hearing examiner's decision, concluding that the project had vested. The city appealed, and the court of appeals reverses the superior court decision, holding that, without the filing of a building permit application, the project had not vested. The court found that the vested rights doctrine has not been vicariously expanded to include filing an application for site development plan review. The court refused to expand the vested rights doctrine to a site development plan review application, absent a building permit application, because Bonney Lake's ordinances and processes satisfy statutory and constitutional concerns.
In Re The Forfeiture Of One: 1970 Chevrolet Chevelle, ___ Wn. App. ___ (9/17/2007) [Vehicle forfeiture] The innocent owner exception to the vehicle forfeiture provision may not be invoked by a claimant who either knew, or should have known after reasonable inquiry, of the illegal use of the property that subjects it to forfeiture. Thus, in order to benefit from the innocent owner exception, claimants must demonstrate that (1) they did not know of the illegal use to which the vehicle was being put; (2) they could not have known of that illegal use based on the information before them; and (3) they could not have known of that illegal use based on the information available to them had they conducted an inquiry a reasonable person would have conducted under the circumstances. The legislature did not intend to subject to forfeiture those vehicles used by individuals in mere possession of controlled substances (a vehicle used by an individual in possession of a controlled
substance, but not used to facilitate the acquisition of that controlled substance, is not subject to forfeiture.)
Leskovar v. Gregory Nickels, 140 Wn. App. 770 (9/17/2007) In March 2004, Seattle Mayor Nickels issued Executive Order 02-04 entitled "City Recognition of Valid Marriage Licenses." Leskovar and others challenged the order as being invalid. The trial court dismissed the challenge as did the court of appeals. To show the state has preempted the field of employee benefits for the City of Seattle. The court found to the contrary, concluding that that field remains a matter of local concern in which the City exercises broad discretion. A city's executive orders are presumed to be valid, and grants of municipal power are to be liberally construed. An executive order may be found to be invalid if (1) a state statute preempts city regulation of the subject matter or (2) the order directly conflicts with a state statute. Those who challenge the order bear the burden of proving that the ordinance is invalid. These principles are equally applicable to executive orders and ordinances.
Swinomish Indian Tribal Community. v. W. Washington Growth Management. Hearings Board, 161 Wn. 2d 415 (9/13/2007) [Growth Management] This is a challenge to Skagit County's critical areas ordinance. The Tribe challenged the ordinance alleging, among other things, that while a "no harm" provision protected the areas, it did not enhance them. The court concluded that the requirement to "protect" did not require enhancement. The court also concluded that while best available science needed to be considered and included in its record, it did not need to follow it. The court concluded that the county did not need to require buffers near rivers, where previously existing buffers had long since been removed (there is no requirement to enhance). The court found the county's monitoring system inadequate, as it included no benchmarks.
City of Pasco v. Shaw, 161 Wn. 2d 450 (9/13/2007) [Licensing of rental units/compliance with codes] To address a problem with the poor conditions of some rental units within the city, the city council passed an ordinance requiring landlords, to be licensed by the city, have inspections made of their rental units and furnish the city with certificates of inspectors certify that their units met applicable building codes. A challenge was brought, arguing that the required inspections constituted improper searches and that the inspection ordinance was too vague to be enforceable. On appeal, the court disagreed. The inspections could be performed by private inspectors, so they did not involve any government action. Also, the appellants did not establish that the ordinance, presumed constitutional, was vague.
Beaupre v. Pierce County, 161 Wn. 2d 568 (9/13/2007) The plaintiff, Beaupre, was injured following a chase when he, while approaching the vehicle of a suspect, was struck by a police officer from another jurisdiction. Beaupre, who was a police officer with the county, collected under workers' compensation and also sued for negligence. The county argued that the professional rescue doctrine bars professional rescuers from recovering under the rescue doctrine because a professional rescuer assumes certain hazards "not assumed by a voluntary rescuer." The court disagreed in this instance, holding that the doctrine does not bar the plaintiff's law suit because it does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene.
State v. Hatchie, ___ Wn. 2d ___ (9/6/2007) [Search warrants] Does a misdemeanor arrest warrant gives police the "authority of law" to enter someone's home? Yes, an arrest warrant -- even for a misdemeanor -- constitutes "authority of
law" which allows the police the limited power to enter a residence for an arrest, as long as (1) the entry is reasonable, (2) the entry is not a pretext for conducting other unauthorized searches or investigations, (3) the police have probable cause to believe the person named in the arrest warrant is an actual resident of the home, and (4) said named person is actually present at the time of the entry.
Kitsap County Deputy Sheriffs Guild v. Kitsap County, ___ Wn. App. ___ (9/5/2007) [Personnel; termination of police officer] A deputy sheriff, after having been terminated for, among other things, a lack of truthfulness, obtained an arbitration award requiring reinstatement. Alleging that the county failed to honor the arbitration award, the Guild, on the deputy's behalf, sued. Upon appeal, the court held that the arbitration award, which required reinstatement, violated public policy and was unenforceable. The deputy had a duty to the public and his lack of candor in the performance of his duties violated the public trust.
Quest Corp. v. City of Bellevue, 161 Wn. 2d 353 (8/30/2007) [Application of utility tax to telephone revenue] Bellevue sought to impose its utility occupation tax on certain telecommunication revenues (those associated with charges for customer access line charges(CALCs) and private line, frame relay, and ATM (automatic teller machine) charges purchased under a Federal Communications Commission tariff; (2) charges for interstate services; or (3) federally tariffed charges). The Court ruled against the city, finding that whether the charges are for access to interstate or intrastate service is not determined by looking to the customer's use of the connections (it is a question of law); and RCW 35A.82.060(1) precludes city taxation of charges for interstate service regardless of whether those charges are to another telecommunications company. Interested persons are encouraged to read the decision.
MT Development v. City of Renton, 140 Wn. App. 422 (8/27/2007) [Extension of utility service outside city limits] Where a municipality is the exclusive provider of sewer service to property outside its borders, it may not refuse to provide that service, although it may impose reasonable and lawful conditions before doing so. Reasonable and lawful conditions do not include mandatory compliance with the residential density limits in the municipality's comprehensive land use plan, even where the proposed service location is within the municipality's potential annexation area. Such a requirement amounts to zoning, and a municipality may not zone property outside its borders.
Zink v. City of Mesa, 140 Wn. App. 328___, (8/23/2007) [Public disclosure]. The Zinks made numerous and lengthy public records requests of the city. When the records were slow in coming, due to the volume of the requests and the limited size of the city staff, the Zinks sued. The trial court was sympathetic to the city, finding that, in view of the nature of the requests, the city had "substantially complied," that compliance to the requests amounted to a "practical impossibility," and that the requests amounted to unlawful harassment. On appeal, the Court of Appeals disagreed, finding that strict---not substantial---compliance was required. The city had limited the Zinks to one hour per day to review records; the Court held that that limit was not adequate. The Court further found that the city had disparately treated the Zinks, as it had no rules in place to allow its delays and limits on access; it does not matter that the city would have treated others similarly. The Court also found that the city's inclusion of staff time in making diskettes and tapes of records was permissible.
Delaney v. Spokane County Commissioners, ___ Wn. 2d ___ (8/16/2007) [Addition of district court judge] Various local officials asked the state legislature to increase the number of district court judges from nine to ten; the legislature agreed, and the county district court districting committee agreed to the increase. The county board of commissioners approved the amendment to the court districting plan but did not authorize the creation of a new judge position. Delaney, who wished to file for election to the new position, sued to mandate that the county create and budget for the new judgeship. The superior court denied the request and an appeal ensued. The Supreme Court affirmed the trial court's decision. By statute, RCW 3.34.020, for an additional judgeship to be effective, the county Board must "document[ ] its approval" and "its agreement" to fund the additional position. The Board did not "document[ ] its approval of the additional position[ ] and its agreement" to fund the position within the meaning of RCW 3.34.025. Although the Board adopted an amendment to the Plan authorizing an additional position, it specifically and affirmatively did not establish or fund the position, and that was within the Board's discretion.
Cowlitz County v. Martin, 140 Wn. App. 170 (8/14/07) [Condemnation] The county sought to condemn property to allow it to increase the size of a culvert to improve fish passage; the property owner objected and sued. On appeal, the court held that (1) the Salmon Recovery Act does not authorize counties to condemn private property, (2) repair and improvement of salmonid fish runs is not a public use under RCW 8.08.010, and (3) a County attorney does not have authority under RCW 8.08.010 to articulate a different or additional purpose for condemnation not stated by the county's Board of Commissioners.
Post v. City of Tacoma, 140 Wn. App. 155 (8/14/07) [Nuisance/LUPA] Mr. Post owned numerous properties throughout the city, some of which, the city alleged, were in violation of the city's Minimum Building and Structures Code. Mr. Post accumulated almost $400,000 and he sued, alleging that the fines were excessive, unconstitutional, and outside the City's statutory authority. The trial court disagreed, finding, among other things, that Post had failed to comply with LUPA, having not filed his appeal within 21 days of the imposition of the penalties. An appeal was filed, and the court affirmed. Was the imposition of fines for noncompliance a "land use decision?" Yes, the court concluded. Were the notice of violations and the imposition of fines a "final determination?" Yes. The hearing examiner (who made the determination) was the highest level of authority to make the determination and, therefore, his decisions were final and within LUPA's jurisdiction.
State v. Foxhoven, ___ Wn. 2d. ___ (8/2/07) [Rules of evidence] The court concluded that the trial court could admit as evidence the fact that each of the defendants had used one of the graffiti "tags" found at the current crime scene on previous occasions. The prior usage can be admitted to show identity. Differences in font, style, medium, and the objects on which the graffiti was placed go to the weight of the evidence, not its admissibility. For example, if a tag like the "mark of Zorro" is left at the crime scene and there is evidence that the person charged with the crime made that mark at other crime scenes, it is admissible.
Burns v. City of Seattle, ___ Wn. 2d. ___ (8/2/07) [Franchise agreements] The city of Seattle provides electricity to the residents of several nearby cities pursuant to franchise agreements. One of the terms of the franchise is that Seattle will pay a percentage of its revenue from the outside sale of electricity to the benefiting cities on condition that those cities will not develop their own electric utility. Petitioners challenged payment provisions s of the franchises, arguing that they violate RCW 35.21.860(1), ("[n]o city or town may impose a franchise fee or any other fee or charge of whatever nature or description upon the light and power . . . . distribution business[]." ) The court disagreed with the petitioners and held that the payment provision did not fall within the statutory prohibition because the cities did not exact the payments through their governmental powers of taxation and regulation. Rather, acting in a proprietary capacity, the cities negotiated the payment provision as consideration for a special benefit (the cities' agreement to forbear operating their own electric utilities) conferred on Seattle City Light independent from the privilege of operating a franchise.
Glasser v. Seattle Hearing Examiner, ___ Wn. App. ___ (7/30/07) [SEPA Appeal] The appellant contended that the Hearing Examiner wrongly prohibited her from presenting evidence or argument challenging the continued validity of the analysis in the programmatic SEPA document underlying the City's decision to proceed with an expanded hatchery. The trial court disagreed and this appeal ensued. On appeal, the court reasoned that the SEPA phased review regulations are designed to streamline environmental review as a proposal progresses from broad planning to narrow site- specific implementation. The scope of the project EIS is to be limited accordingly. The requirement to review a nonproject EIS to "ensure that the analysis is valid" refers to the validity of the environmental impacts analysis in the programmatic EIS, not the purpose and need or the range of alternatives. Allowing opponents to use a project EIS to collaterally attack previous programmatic policy decisions would disrupt the finality of the decision and eliminate any benefits of phased review. Parties who are dissatisfied with a programmatic EIS may challenge it directly.
City of Woodinville v. Church of Christ, 139 Wn. App. 639 (7/17/07) [Land Use] The city had denied an application for a "tent city" (a temporary home for the homeless) on private property, since a moratorium was in effect for the zone in which the church property was located, and on private property, apparently based in part on adverse testimony from citizens. After disposing of several preliminary matters, the court, in a challenge based upon constitutional protections, held that strict scrutiny does not apply under the First Amendment. There was no evidence in the record that the City's zoning laws or the moratorium had a purpose to restrict religious practices. The city's laws were of general applicability and not subject to strict scrutiny analysis. The court also denied a challenge under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The court held that the Church has failed to show that the City's actions imposed a substantial burden to the free exercise of religion by its members. For example, the church failed to establish that the use of the indoor church buildings was an ineffective option for providing shelter to the homeless. The Church did not show that using its buildings to shelter the homeless was not a viable alternative.
Spokane Research & Defense Fund v. Spokane County, 139 Wn. App. 450 (6/28/07) [Tax exemption of publicly-owned garage] In a sophisticated financing agreement, a parking garage was built in downtown Spokane. The garage was constructed by a developer and sold to a private nonprofit organization and was managed by a public development authority and, following litigation, taken over by the city in January 2005. At issue was whether property taxes were owed while the garage was owned by the nonprofit organization. The court concluded that the garage was tax exempt..
Brevick v. City of Seattle, ___ Wn. App. ___ (6/25/07) {Claims statute] The plaintiff Brevick was injured in an automobile accident. He filed a tort claim against the city, then a lawsuit, and for 18 months his attorney sought to reach an agreement. When the court refused to grant a continuance, Brevick voluntarily dismissed the lawsuit. Later Brevick refiled a lawsuit, but without filing a new claim against the city. The city sought dismissal of the lawsuit based upon the plaintiff's failure to file a claim. (Previously the city admitted that a claim had been filed (prior to the first lawsuit). The court allowed the suit to continue, finding that the city's earlier admission that a claim had been filed estopped the city from now arguing to the contrary and that the negotiations that had occurred on the original claim had waived the city's right to now challenge the claim.
Valley Environmental Laboratory v. Yakima County, ___ Wn. App. ___ (6/15/07) [Conflict of interest] A county employee, who had a close relationship to the owners of a laboratory, referred county business to that laboratory. Upon learning of the relationship, the county refused to pay for the work that had been performed, citing chapter 42.23 RCW. The employee reported to the surface water manager, who in turn reported to the appointed assistant director of public works for environmental services. He was the lowest on a four-tiered organizational chart and his position was "non-exempt" and "non-supervisory." And he was required to be a member of a union. Was the employee an officer? The definition of "municipal officer" in this statute is expansive. The statute defines "municipal officer" as "all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer." RCW 42.23.020. The question, the court suggested, was whether the employee exercised "any of the powers or functions of a municipal officer." RCW 42.23.020. He does not have to be a "municipal officer" to fall within the purview of the statute. He need only exercise the power of a municipal officer. The case was returned to the trial court to make that determination.
Alprin v. City of Tacoma and Tacoma City Utilities, 139 Wn. App. 166 (6/5/07) [Tort liability] Alprin, while operating a sailing boat, struck electrical transmission lines that crossed a body of water. The lines had been noted on a NOAA navigation map and were highlighted on the water by red buoys. The court upheld a judgment in favor of the city, finding: (1) Alprin was presumed to be at fault because his vessel was in an allision; (2) Alprin could not show that Tacoma breached any duty because it provided adequate notice of the wire obstructions as a matter of law where the power lines' location and clearance appear in the NOAA charts for Henderson Bay; and (3) Alprin could not show he was without fault because a recreational boater is charged with knowledge of all warnings in a NOAA chart, and he is required to maintain a lookout at all times.
Parrilla v. King County, 138 Wn. App. 427 (5/7/07) [Torts] A bus passenger, who had been acting erratically, was left on a bus when the driver disembarked. The passenger drove the bus down the street, hitting and damaging several automobiles, including that of the plaintiff, Parrilla. Was the county required to provide others, nonpassengers, with a high degree of care? Yes. The county owed a duty to guard the Parrillas against the foreseeable criminal conduct of the passenger where the passenger's affirmative act exposed the Parrillas to a recognizable high degree of risk of harm through such misconduct, which a reasonable person would have taken into account.
City of Medina v. Primm, 160 Wn. 2d 268 (5/3/07) [Obtaining court services through interlocal agreement] May one city enter into an interlocal agreement with another city, operating its court in the other jurisdiction, using the other city's courthouse and judge? Yes. Under RCW 3.50.020, a municipal court has jurisdiction over traffic infractions and violations of a city's code, plus those powers "conferred by statute." Under RCW 39.34.080, cities may contract with one another "to perform any governmental service," without exception for municipal court services. These statutes authorize the extraterritorial operation of municipal courts pursuant to court-sharing agreements between cities, as apparent in RCW 3.50.805 (governing termination of municipal court services performed by one municipality on behalf of another) and RCW 3.62.070 (regulating the fees cities must pay to district courts for enforcement of city ordinances except "where a city has contracted with another city for such services pursuant to chapter 39.34 RCW").
San Juan County v. No New Gas Tax, 160. 2d 140 (4/26/07) [Election campaigning] Must on-air support of an initiative campaign by radio talk-show hosts be disclosed as a campaign "contribution" under the Fair Campaign Practices Act (FCPA), chapter 42.17 RCW? The Supreme Court concluded that there was no contribution involved. The radio broadcasts at issue fall within the statutory media exemption (RCW 42.17.020(15)(b)(iv)) because they aired during the content portion of a regularly scheduled radio program, for which the broadcaster does not normally require payment, on a radio station that is not controlled by a candidate or political committee. Because the media exemption applies, the radio broadcasts are not a campaign "contribution" within the meaning of RCW 42.17.020(15)(a).
Sanders v. City of Seattle, 160 Wn. 2d 198 (4/26/07) [First Amendment rights] There Westlake Center [a downtown mall] had an oral policy in effect which required persons using the interior public easement to hold stick-mounted signs down. During an anti-war rally, protesters were in the mall, holding anti-war signs. Some were removed and others were barred from the mall. A constitutional challenge was filed. The Supreme Court upheld the mall's actions, holding that not every regulation of speech is a prior restraint. Regulations that do not ban expression but instead impose valid temporal, geographic, or manner of speech limitations are analyzed as time, place and manner restrictions. Where a nonpublic forum is involved, speech may be restricted by reasonable time place and manner restrictions, and by distinctions that are reasonable in light of the purpose served by the forum and are content neutral. The oral policy requiring persons using the interior easement to hold stick-mounted signs down was not a ban on speech, but instead imposed valid time, place and manner restrictions. The policy was content neutral. The manner of speech was regulated for the protection of other persons using the Center and to keep the easement passage open and accessible. This limitation was especially important because escalators, which must be traveled carefully, form a significant part of the easement. The geographic location was also validly limited because while signs had to be lowered in the Center itself, they could be carried aloft on nearby public sidewalks outside of and adjacent to the Center.
State v. Jorden, ___ Wn. 2d ___ (4/26/07) [Search and seizures] The police, while making a random check of a hotel registry, discovered the name of a person (Jorden) for whom an arrest warrant was outstanding. Jorden was arrested and, during the arrest, illegal drugs were discovered in plain view. Jorden appeal, challenging the search. The Supreme Court agreed. Information contained in a motel registry constitutes a private affair under article I, section 7 of the Washington State Constitution because it reveals sensitive, discrete, and private information about the motel's guest. Absent a valid exception to the prohibition against warrantless searches, random viewing of a motel registry violates article I, section 7 of the Washington State Constitution. The evidence obtained from the registry of the Golden Lion Motel, which led officers to Jorden's room, was obtained through unlawful means and should have been excluded.
Eugster v. City of Spokane, 139 Wn. App. 21 (4/24/07) [Settlement of lawsuit and related issues] This is another chapter in a string of cases involving the construction of a parking garage in Spokane. The court addresses a variety of issues, including whether Mr. Eugster had standing to bring the suit (apparently not), whether he was collaterally estopped, since the settlement at issue was reached as result of a lawsuit he brought, whether the settlement violated the state accountancy act or the constitutional prohibition against gifts (it did not; it involved the settlement of a claim). Mr. Eugster argues that the city's settlement violated the off-street parking facilities statute, chapter 35.86 RCW. The court concluded that it did not.
Ford Motor Co. v. City of Seattle, 160 Wn. 2d. 42 (4/12/2007) [Application of business and occupation tax to wholesaling] Both Seattle and Tacoma imposed a business and occupation ("B & O") tax on Ford's wholesaling activities. A B&O tax on engaging in the business of wholesaling is levied upon the privilege of doing business as a wholesaler, not upon the actual sales at wholesale. (A tax imposed on the actual sale of products is, by definition, a sales tax. B&O taxes, on the other hand, are not sales taxes.) Ford appealed application of the tax and, in a 5-4 decision, the Court upheld the cities' tax on Ford's wholesaling activities. Ford had stipulated that various activities were for the business purposes of selling its products to dealers located in Tacoma and Seattle and helping those dealers sell Ford products to retail customers. Ford argued the tax calculation should not include wholesale auto sales. The Court disagreed, found that the cities were properly apportioning the taxes, and held that the cities were properly classifying the scope of Ford's business. The Court also found that the cities' ordinances limited their taxing power to only those gross receipts derived from the sale of goods delivered into the cities. Among other Ford arguments, the court rejected the argument that the cities' tax was an unconstitutional burden on interstate commerce.
Thurston County v. Western Washington Growth Management Hearings Board, 137 Wn. App. 781 (4/3/2007) [Growth Management] A citizen's organization challenged some growth management and comprehensive plan amendments made by the county. On appeal, most challenges were upheld. The court concluded that the organization (Futurewise) had standing, since members had appeared to participate. The county argued that parts of its comprehensive plan that was not altered by new amendments were not now subject to appeal. The court concluded the challenge should be allowed, since a challenge may be made against an action or a failure to act. The court overruled the lower court decision relating to the use of parcel size (as one factor) in the designation of agricultural lands of long term significance. The court further concluded that the hearings board erred in requiring the county to prove that its plan provided a variety or urban densities (rather than having Futurewise prove invalidity). The court invalidated amendments to the UGAs (the court concluded that the hearings board did have jurisdiction to review the UGAs).
City of Arlington v. Central Puget Sound Growth Management Hearings Board, 138 Wn. App. 1 (3/26/2007) [Growth Management] The county declared certain property, located near two highways and the city or Arlington, was not land of long-term commercial significance to agriculture and thus eligible for redesignation to urban commercial use. The county also placed the land in the Arlington UGA. The county's actions were reversed by the Hearings Board. The court of appeals concludes that the Hearings Board had erred. (The Hearings Board had (improperly) dismissed certain evidence which would have supported the county's decisions.) There were also facts in the record that supported the conclusions that the land in question is characterized by urban growth and/or adjacent to territory already characterized by urban growth and thus eligible for inclusion in a UGA..
Griffin v. Thurston County County Board Of Health, 137 Wn. App. 609 (3/20/2007) [Denial of on site sewer system for failure to meet requirements] Griffin sought a permit for an on-site sewer system so he could construct a residential home on an undersized lot. The lot's dimensions failed to meet county standards in four respects. While waivers for the deficiencies were issued, an on-site sewer system could only be allowed if the requesting party "meets all requirements" in the regulations other than the minimum lot size. Can an on-site sewer system be allowed when some of the requirements have been "waived"? The court concluded "No," the "all requirements" the portion of the ordinance at issue cannot include "requirements" that have been waived or set back. If "all requirements" included waivers and setbacks, the language would be meaningless and superfluous.
Home Builders Association of Kitsap County v. City of Bainbridge Island, 137 Wn. App. 338 (2/21/2007) [Building permit fees] In order to develop an affordable housing trust fund, the city placed a surcharge on the fees it charges for building permits and plan reviews. The Home Builders challenged the rew fees, arguing that they were violative of RCW 82.02.020. On appeal the Home Builders argued that the burden of proving the reasonableness of the fees fell on the city and that the wrong standard was used to determine reasonableness. The court held that the burden of proving whether the fees charged fell within an exception to RCW 82.02.020 (which allows fees for the "processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C RCW ") rests with the city. It also held that the reasonableness of the fees charged must be judged according to whether they are reasonable, that is, "being or remaining within the bounds of reason: not extreme: not excessive," rather than on whether they are "grossly disproportionate." Further, the court found that the trial court erred when it reached its decision on the reasonableness of the City's permit fees based on general accounting and cost allocation principles and the City's costs of regulation, instead of focusing on evidence of costs the legislature specifically allowed in RCW 82.02.020.
Tingey v. Haisch, ___ Wn. 2d. ___ (2/15/2007) [Statute of limitations] This is not technically a city or county case. It involves a lawsuit by a lawyer seeking payment for work that was performed. Tingey performed legal services for the Haischs, charging on an hourly basis, but without a written contract. When payment was not forthcoming, Tingey sought to collect. Haisch argued that the three-year statute of limitation applied, as there was no written contract. Tingey prevailed in superior court, but the court of appeals overturned. The supreme court holds that the relevant statute of limitations is six years, the period provided for accounts receivables. The court states: "[The term] "account receivable" as used in RCW 4.16.040(2) is an amount due a business on account from a customer who has bought merchandise or received services. This meaning encompasses a balance owed by a client to an attorney for legal services performed on behalf of the client on an hourly fee basis without a written fee agreement. Thus the six-year limitation for "[a]n action upon an account receivable incurred in the ordinary course of business" applies to Tingey's action to collect attorney fees from Haisch." The court's holding may have application to the provision of utility services, which often are provided in the normal course of business without a written contract.
Saben v. Skagit County, ___ Wn. App. ___ (2/12/2007) [Land use/violation of dispute settlement agreement] The Sabens sought to operate a tree farm in Skagit County; they applied to build a residence, shop, and septic system on the property. Although the permits were initially issued, due to conflicting regulations, the county then revoked the permits. The Sabens appealed and, after discussion with between their attorney and the prosecutor's office, the matter was settled and the permits were reinstated. The Sabens, relying on their agreement with the county, began work on the property. Thereafter, following advice from outside counsel, the county again reversed its decision and withdrew the permits. The Sabens sued. The superior court ruled that the county had breached its settlement agreement with the Sabens. On appeal, the court agreed and returned the decision to superior court for determination of damages.
Sleasman v. City of Lacey 159 Wn. 2d 639 (2/8/2007) [Land use/meaning of "developed"] The city required a permit to remove trees from undeveloped or partially developed properties. The Sleasmans cut down 18 trees in their back yard and were fined by the city; they appealed. The court did not address a vagueness argument, since it was not required to do so, given its holding. However, the court did engage in statutory construction, determining what "developed" and "partially developed" means. The court held that "developed property" means a lawful building site made suitable for sale or use. "Partially developed" refers to property that is either in an area where part is raw land that is unsuitable for building or where the area as a whole is not yet finally developed so it is not yet a lawful building site. The Sleasmans' property was developed, the court concluded, so the permit requirement did not apply. The court suggested that the city was confusing "developed" with "improved."
Westway Construction v. Benton County, ___ Wn. App. ___ (2/7/2006) [Land use appeal] The county restricted an application to mine and crush rock on environmental grounds. An appeal followed. The court rejected an appeal under RCW 64.40.020(1), as the appeal was not brought by an owner of interest in the property involved; there was no standing. Additionally, such a claim may only be brought within 30 days following an exhaustion of remedies; the claim was filed before there was an exhaustion of remedies. A 1983 claim was denied, as it was not filed in a timely manner (within three years). A negligence claim was denied because the court action was begun before 60 days had run from the date of filing of a claim. The court also denied an estoppel argument and a fraud claim was filed after the running of the statute of limitations.
Clallam County Citizens For Safe Drinking Water v. City Of Port Angeles 137 Wn. App. 214 (2/6/2007) [SEPA/fluoridation of water] Is the decision to fluoridate the public water supply was categorically exempt from Environmental review under the State Environmental Policy Act (SEPA)? The court of appeals affirmed the decision of the superior court that the decision was/is exempt. WAC 197-11-845 categorically exempts from review "[a]ll actions under programs administered by the department of social and health services as of December 12, 1975." Fluoridation is such a program (even though it is now under the Department of Health). The court rejected the argument that the local fluoridation decision was separate from the program administered by the state. The fact that the city had issued a DNS for the decision does not prevent it from being exempt from SEPA.
Yousoufian v. The Office Of Ron Sims, ___ Wn. App. ___ (2/5/2007) [Public records/calculation of penalty] If a public agency fails to provide a nonexempt record for review or copying, it can face a penalty of between $5 and $100 for each day the record is withheld. How does the court determine where the penalty should be set in the range? The court here offered the following advice: "The minimum statutory penalty should be reserved for such "instances in which the agency has acted in good faith but, through an understandable misinterpretation of the PDA or failure to locate records, has failed to respond adequately." Then, working up from the minimum amount on the penalty scale, instances where the agency acted with ordinary negligence would occupy the lower part of the penalty range. Instances where the agency's actions or inactions constituted gross negligence would call for a higher penalty than ordinary negligence, and instances where the agency acted wantonly would call for an even higher penalty. Finally, instances where the agency acted willfully and in bad faith would occupy the top end of the scale. Examples of bad faith would include instances where the agency refused to disclose information it knew it had a duty to disclose in an intentional effort to conceal government wrongdoing and/or to harm members of public. Such examples fly in the face of the PDA and thus deserve the harshest penalties."
Pham v. City of Seattle, 159 Wn. 2d 527 (2/1/2007) [Employment discrimination/calculation of award] Pham prevailed in a discrimination lawsuit against the city. In determining the cash award for the plaintiff, the trial court did not award an additional amount to reflect the tax consequences of a lump sum payment for non-economic losses (pain, suffering, emotional distress). The supreme court concludes that the trial court did not err in declining to award an offset for the tax consequences of their noneconomic damages. The court also concludes that the trial court did not abuse its discretion in calculating the lodestar amount (a calculation of attorney fees). However, the trial court failed to recognize that when evaluating the propriety of a contingency multiplier (an addition amount awarded for attorney expenses, given in recognition of the high risk the attorneys take without assurance that their efforts would be compensated), it is improper to consider the inability of the
plaintiffs to clearly articulate their claims or provide substantial supporting evidence.
Okeson v. City of Seattle, 159 Wn. 2d 436 (1/18/2007) [Finance/use of utilities monies] May a municipal utility mitigate the effects of its greenhouse gas emissions by paying public and private entities to reduce those entities' emissions? The Court held that combating global warming is a general government purpose not a proprietary utility purpose. Therefore, such mitigation expenses must be borne by general taxpayers rather than utility ratepayers.
Clark v. City of Kent, 136 Wn. App. 668 (1/16/2007) [Personnel/payment of wages] May a city that pays its employees twice per month, in order to facilitate bookkeeping, maintain a payroll system in which wages earned up to 14 days before each payday are withheld from a current pay period and paid on the following regular payday? Yes. WAC 296-128-035 (an employer may implement a regular payroll system in which wages from up to seven days before pay day may be withheld from the pay period covered and included in the next pay period) does not preclude such a system. The court found that employers who pay wages on a more than once-a-month schedule are not limited by the seven day rule; they have a longer period of time, allowing them to process the payroll for such things as overtime and irregular pay.
Spokane & Eastern Lawyer v.Tompkins, ___ Wn. App. ___ (1/9/2007) [Public disclosure] A nonprofit corporation sought copies of correspondence from the Spokane Superior Court to the state and local bar associations. The request was denied and the nonprofit sued under the Public Disclosure Act. On review and citing earlier authority, the court denied the request, finding that the court was not an "agency" under the Public Disclosure Act and thus was not required to provide the requested letters.
2006
Lewis v. Whatcom County, ___ Wn. App. ___ (12/26/2006) [Torts/negligent investigation] Lewis sued the county, alleging that the sheriff's office had failed to investigate allegations that an uncle had sexually abused her. The county argued that a statute requiring investigation, RCW 26.44.050, only applied if the abuser was a parent. The court disagreed, finding that there was no such limitation and that the county had a duty to make a reasonable investigation of the allegations.
1000 Friends of Washington v. McFarland, 159 Wn. 2d 165 (12/21/2006) [GMA and the power of referenda] King County, as part of its comprehensive plan updating activities, adopted ordinances regulating stormwater, clearing and grading, to help protect critical areas, as required by the state Growth management Act (GMA). McFarland circulated petitions, seeking a referendum on the critical area ordinances. Superior court granted a summary judgment, finding that the ordinances were not subject to referendum; McFarland took a direct appeal to the Supreme Court, which upheld the superior court's judgment. McFarland sought to have the court reverse an earlier opinion, finding that GMA ordinances were not subject to referendum; the court declined to do so. The requirement to protect critical areas had been given to the county legislative body, and thus was not subject to referendum. The GMA process requires significant public involvement, which negates the need to submit GMA ordinances to the public for referenda. The Legislature, recognizing the Supreme Court's earlier decision (denying a referendum) chose not to alter the statutes. The ordinances under review related to the protection of critical areas and were necessary for GMA compliance.
Adams v. City of Spokane, 136 Wn. App. 363 (12/19/2006) [Taxation of utility] Adams claims the city illegally collects money from its public utility ratepayers to pay the business and occupation tax imposed by the City on public utilities. Adams argued that the utility could not pass on the tax to its customers. The court disagreed; the taxes are part of the cost of doing business. Adams argued that by having the customers reimburse the tax, they are not receiving the full value of the services they pay for; the court disagreed. adams argued that the city could not tax the portion of a customer's payment attributable to capital contributions; the court concluded the city could, as that portion is part of the gross revenue upon which the tax is calculated. Adams argued that the city did not properly disclose the tax, but the tax is on the utility, not the customer, and there is no requirement to disclose the tax to the customer. The court rejected an equal protection argument.
Herbert v. Public Disclosure Commission, ___ Wn. App. ___ (12/18/2006) [Use of government facilities for political purposes] Herbert used a school e-mail system to notify employees that initiative petitions had been placed in their school mailboxes; he also asked that completed petitions be placed in his mailbox. A complaint was filed, alleging a violation of RCW 42.17.130, which prohibits the use of government facilities for support or opposition to a ballot proposition. Herbert was fined, and he appealed. Herbert argued that the use was di minimis as it did not result in a use having any economic value and that it was part of the school's normal and regular activities. The court concluded that there is no di minimis exception to the prohibition and that it was not a normal or regular activity to use school mailboxes for political purposes. The court found that the e-mail and school boxes were not public forums and that the statute's restrictions were reasonable and viewpoint-neutral (and thus constitutional). The court also found that there were alternative means of communication and rejected arguments that the restrictions were arbitrary and capricious or overbroad.
Community Telecable Of Seattle v. City Of Seattle, ___ Wn. App. ___ (12/11/2006) [Telephone utility tax application to internet transmission activities] May the city's telephone utility tax be applied to Comcast's Internet transmission activities? While the trial court concluded it could not, on appeal, the decision was reversed. The court concluded that: the tax is not barred by the Washington Internet Tax Moratorium; the tax is exempt from the federal Internet Tax Freedom Act's moratorium on taxes on Internet access under a grandfather clause; and the tax is not discriminatory under the federal Internet Tax Freedom Act.
Pierce County v. State, 159 Wn. 2d 16 (12/7/2006) [Impairment of contract/ effect of Initiative 776 on bond issue] Sound Transit was created in 1996 by a vote of the people to address the transportation needs of the Puget Sound region. Various improvements were to be funded either directly or indirectly (through bonds) by a motor vehicle excise tax (MVET). In 2002 the voters approved initiative 776 which, among other things, reduced the statewide MVET to $30 and prohibited Sound Transit from imposing a separate MVET. Initiative 776 was upheld by the courts, but the court did not determine whether the initiative impaired contracts (which would be prohibited). Litigation ensued. The Supreme Court concluded that the initiative did impair contracts (the bonds that had been issued). Impairment is shown if 1) a contractual relationship exists, 2) the legislation substantially impair the contractual relationship, and (3) if there is substantial impairment, the impairment is neither reasonable nor necessary to serve a legitimate public purpose. The bonds were a contract, repeal of the MVET impaired the contract, and a change of tax policy is not a purpose that outweighs the impairment. The court also concluded that the bond contract itself was not invalid.
Holder v. City of Vancouver, 136 Wn. App.104 (12/5/2006) [Appeal of land use decision] Holder appealed a hearing examiner's order which found that he had violated a city ordinance by parking and storing vehicles on unimproved surfaces. While the petition for review referenced LUPA, LUPA was neither addressed or argued during the appeal. Likewise, LUPA was not addressed or argued opn Holder's appeal to the court of appeals. The court held that it would not consider LUPA since it apparently had been abandoned in superior court and during the later appeal. The appellant thus abandoned his right to appeal. Holder did not file a petition for discretionary review
City of Spokane v. County of Spokane, 158 Wn. 2d 661, (11/16/2006) [Courts/ Termination of Municipal Department of District Court] The city of Spokane gave notice of its intent to terminate its municipal department of the district court and establish its own municipal court under authority of chapter 3.50 RCW. As required by statute, the city and county entered into negotiations to create an agreement addressing costs, among other things. While an agreement was reached, there was not any agreement as to what costs the city would need to pay. The county district court also alleged that it was a necessary party to the agreement. Litigation ensued and, eventually, the case was submitted to the supreme court. The court held that RCW 3.46.150(1) requires only that a city agree to pay for the costs of criminal cases that will be filed in district court as a result of the termination of a municipal department. The agreement between the City and Spokane County satisfied that requirement. The court also held that municipal cases open on the date that the municipal department is terminated must be transferred to the new independent municipal court.
Interlake Sporting Association v. Boundary Review Board, 158 Wn. 2d 545 (11/9/2006) {Annexations/Boundary Review Board authority] Redmond, following several failed attempts to annex territory, pared the area down and obtained 60 percent approval from property owners, set out in an annexation petition. The area covered by the petition and approved by the council covered 58.96 acres. Upon request by King County, the boundary review board (the "board") accepted jurisdiction and approved an annexation of 184 acres, more than three times the area proposed for annexation by the petition. The board's decision was appealed to and approved by the superior court. After further appeal, the supreme court reversed, concluding that while the city could have sought to add more area when it met with the proponents, it could not do so after the area was set out in the annexation petition (and the board could not do so either) as to do so would be inconsistent with RCW 35A.14.140. Also, with the addition of territory, the annexation petition no longer satisfied the necessary approval requirements. In addition, the fact that the annexation would be consistent with the growth management act does not matter, since growth management still requires that the annexation statutes be followed. The court further expressed concern about annexing a larger territory where the property owners previously opposed the annexation. The court further concluded that it would be improper to require the area added by the boundary review board to be both subject to the city's previous debt and the city's preannexation zoning, as the residents had not had an opportunity to object.
KMS Financial Services v. City Of Seattle, 135 Wn. App. 489 (10/31/2006) [Taxation] The City of Seattle imposed a business and occupation (B&O) tax on the entire gross income of KMS Financial Services, Inc., a brokerage house based in Seattle. KMS argued that the City taxed earnings beyond its constitutional power, and sought a refund of the tax. Both parties filed motions for summary judgment. The trial court granted KMS's motion and denied the City's motion. The City appeals and the court rejected KMS's argument that the City's tax violated equal protection, but agreed with its argument that by seeking to tax income generated by extraterritorial activities, the City's B&O tax as applied to KMS exceeded federal and state constitutional limits. KMS, the court concluded, was entitled to apportionment. Neither party, the court held, had correctly identified the measure of the tax, so the case was remanded for further proceedings.
Scoccolo Construction v. City of Renton, 158 Wn. 2d 506 (10/26/2006) [Construction contracts/liability due to delay caused by franchisee] The City contracted with Scoccolo for the widening of a street. As result of the widening, certain utilities operating under franchises with the city needed to be relocated. Scoccolo was to coordinate with the utilities for the relocation. The project was delayed, caused in part by delays in the utility relocations, resulting in additional costs to Scoccolo. Scoccolo sued and the city argued that a clause in its contract did not provide for the payment of additional compensation for delay caused by the actions of any utility company. Scoccolo referenced RCW 4.24.360 which provides that any waiver, release, or extinguishment of the rights of a contractor arising out of unreasonable delay in performance where the delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable. The Supreme Court held that the utilities, operating under franchises with the city, were "acting for" the city; accordingly, the waiver of additional compensation for delay clause in the city's contract with Scoccolo was void and Scoccolo was entitled to damages, interest and attorney fees.
SuperValu Holdings v. Department of Labor and Industries, 158 Wn. 2d 422 (10/19/2006) [Personnel/ergonomics] The Department of Labor and Industries sought information by subpoena to determine to determine whether certain workplace injuries were caused by, among other things, ergonomic hazards. The court refused to enforce the subpoena, citing the passage of Initiative 841, which repealed the state's ergonomic rules. On direct appeal, the supreme court concluded that while the initiative had eliminated the specific state ergonomic rules, it did not prohibit the Department of Labor and Industries from taking action under its general authority under RCW 49.17.060(1).to address serious or deadly ergonomics-related workplace hazards.
Pacific Northwest Shooting Park Assn. v. City of Sequim, 158 Wn.2d 342 (10/12/2006) [Conditioning use of convention center] The appellant sought use of the city convention center for a gun show. The permit was issued but with certain conditions, such as only licensed dealers would be allowed to sell guns at the show. Pacific Northwest objected on a number of grounds (several of which were rejected on procedural grounds), including the allegation that the city's conditions violated RCW 9.41.290-.300 (relating to the state's preemption of firearm regulations). The court disagreed. The two statutes, when considered together, explicitly allow cities to enact laws and ordinances restricting firearm possession in stadiums and convention centers they operate. Since one must possess a firearm in order to show or sell it, it is logical that the city could also regulate the sale of firearms at its facility. In addition, when a municipality acts in a capacity that is comparable to that of a private party, the statutory preemption clause does not apply.
Yakima County v. Evans, 135 Wn.App.212 (10/5/2006) [Eminent domain] The county, after listing a particular project in its transportation improvement plan for a number of years, after having given public notice of its hearings and consideration of the plan and its amendments, authorized construction of a road project requiring acquisition of land from the Evans. Unable to agree to the purchase of the land, the county began condemnation proceedings, resulting in the court approving the condemnation. The Evans appealed, arguing that no public necessity was shown, proper notice was not given, that the project failed to protect agricultural land, contrary to growth management, among other things. The appellate court disagreed and affirmed. The court will not overturn the finding of public necessity unless it was arbitrary. Here the was testimony supporting the need for the improvement. Personal notice was not required; general notice of the plan consideration was given. The project did support agriculture, as it provided for improved transportation for agriculture purposes..
City of Fircrest v. Jensen, 158 Wn. 2d. 384 (10/5/2006) [DUI prosecution] Mr. Jensen was charged with DUI and took a blood alcohol concentration test (BAC), the results of which were introduced at trial. Jensen appealed his conviction, arguing that the DUI statute allowing the introduction of the BAC results was unconstitutional, as it contained more than one subject in its title, it infringed on the court's authority, and he was denied due process by the creation of a mandatory rebuttable presumption. The court disagreed and affirmed the conviction. We conclude that the legislation had adequately
announced that it was amending the Motor Vehicle Act, and that its subject matter was within the purview of the Motor Vehicle Act. As to whether the statute infringed on the court's authority, the court concluded that the statute was permissive, not mandatory, and can be harmonized with rules of evidence. Nothing indicated that a trial court could not use its discretion to exclude the test results under the rules of evidence. Finally, the court concluded that Jensen had not shown an mpermissible or unconstitutional shifting of the evidentiary burden.
Koenig v. City of Des Moines, 158 Wn.2d 173 (8/31/2006) [Public disclosure of police records] Police records regarding the sexual assault of a minor were requested by the child's father, who requested the records by naming his daughter. Release was initially denied, although later allowed but with sexually explicit details redacted. The supreme court held that the records must be released, as only identifying information is exempt from disclosure. The redaction of sexually explicit details was not permitted under the statute. The court further concluded that statutory penalties for the improper withholding of records could not be reduced.
Qwest v. City of Kent, 157 Wn. 2d. 545 (8/10/2006) [Telecommunications/reimbursement for relocation of facilities] The US District Court certified two questions concerning the application of RCW 35.99.060(3), which relates to the reimbursements a city may owe (or not), if it requires the relocation or undergrounding of telecommunication lines. The supreme court responded: The term "aerial supporting structures" refers to poles and pole-like structures. RCW 35.99.060(3)(b) requires a city to reimburse a service provider for an aerial to underground relocation of its facilities when the service provider owns a portion of the aerial supporting structures as defined above. The amount the city is required to reimburse the service provider is the difference between an estimated aerial to aerial relocation and the actual aerial to underground relocation of the same facilities.
Lewis County v. Western Washington Growth Management Hearings Board, 157 Wn. 2d. 488 (8/10/2006) [Planning/ ] In determining whether the county had adequately designated agricultural land, the court provided the following definition of agricultural land: "Agricultural land is land: (a) not already characterized by urban growth (b) that is primarily devoted to the commercial production of agricultural products enumerated in RCW 36.70A.030(2), including land in areas used or capable of being used for production based on land characteristics, and (c) that has long-term commercial significance for agricultural production, as indicated by soil, growing capacity, productivity, and whether it is near population areas or
vulnerable to more intense uses." The court also added that counties may consider the development-related factors enumerated in WAC 365--190-050(1) in determining which lands have long-term commercial significance. The court further found that it was not "clearly erroneous" for the county to weigh the industry's anticipated land needs above all else. The court further found that it was clearly erroneous for the county to exclude from designated agricultural lands up to five acres on every farm (for farm centers and farm homes), without regard to soil, productivity or other specified factors in each farm area. The court upheld a decision by the hearings board that county development regulations allowing certain non-farm uses of agricultural lands failed to comply with the GMA requirement to conserve designated agricultural lands.
Lewis v. Department. of Licensing 157 Wn. 2d 446, (8/3/2006) [Public safety/recording of traffic stop] If a police officer stops a person for a traffic violation and, as a result, he or she records the suspect with a video or audio taping system, the conversation that ensues is not deemed to be private. However, the officer is required to tell the suspect that a recording is being made (it is not necessary to tell the person that a video recording is being made). Failure to give such a warning results in the exclusion of the recording from use in the court proceedings.
City of Sequim v. Paul Malkasian, 157 Wn. 2d 251, (7/13/2006) [Power of initiative] The city issued revenue bonds pursuant to RCW 35.41. The issuance was challenged by initiative. The city sought judicial review, arguing that the bond issuance was beyond the authority of an initiative. The court disagreed, the election was held, and the initiative was approved. The city appealed and the court agreed with the city. The court concluded that the issue was not moot, even though the initiative election was over. It also concluded that the authority to issue revenue bonds under RCW 35.41 was given to the city legislative body, rather than to the city, and thus was beyond the power of initiative review.
McClarty v. Totem Electric, International Brotherhood of Electrical Workers Local 76, 157 Wn. 2d 446 (7/6/2006) [Discrimination in employment] The court provided the following definition for the term “disability:” To provide for a single definition of "disability" that can be applied consistently throughout the WLAD, we adopt the definition of disability as set forth in the federal Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. secs. 12101-12209. We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment.
Preserve Our Islands v. Shoreline Hearing Board, 133 Wn. App. 503 (6/19/2006) [Shoreline development permit] An appeal the Shorelines Hearings Board's order requiring the County to issue shoreline substantial development and conditional use permits for a proposed barge-loading facility. The facility will allow the transport large quantities of sand and gravel off an island. The court concluded that the County had zoned the site for commercial mining and designated it as mineral resource land under the Growth Management Act without any restrictions on the size of the use. The current principal use of the site is a commercially significant mining operation, regardless of how it was used in the past. The mine is located on a small island without viable large-scale ground transportation options and cannot operate consistent with its designated principal use without barging. The barge-loading facility is thus an integral part of the principal use, and the entire facility must use the shorelines to operate consistent with its County zoning. The Board and later the court concluded the barge-loading facility was water dependent and that substantial evidence supported the conclusion that the mitigation measures and conditions made the facility consistent with shoreline management policies.
Kevin Locke v. City of Seattle, 133 Wn. App. 696 (6/19/2006) [Damages associated with injury to firefighter during training] A firefighter trainee was injured during a training exercise. A jury found the city negligent and returned a substantial verdict in firefighter's favor. The city appealed, raising constitutional, statutory, evidentiary, instructional, and procedural issues. On appeal, the judgment was affirmed. The city was not entitled to sovereign immunity; if a government engages in tortuous conduct, it will be liable to the same extent as a private person. The title to the LEOFF statute under review was not unconstitutional, and the statute itself did not violate equal protection. The firefighter was a member of LEOFF, even though he was only a trainee at the time of his injury. The firefighter did not assume risk, as he did not have a reasonable opportunity to act differently (and maintain his job). Other procedural issues that were alleged were denied.
Peste v. Mason County, 133 Wn. App. 503 (6/14/2006) [Land use and zoning] An applicant challenged the county's denial of a rezone request, arguing that the county's comprehensive plan and zoning regulations were void because notice and public participation was inadequate; his substantive due process rights were violated; there was a regulatory taking; and because there was no substantial evidence to support the county's denial. The court affirmed the denial, finding that the appicant failed to challenge the notice and public participation provisions before the growth management hearings board, strict compliance was not required, and the challenge was not timely. The applicant failed to provide evidence that the county's regulations deprived him of all viable use of his property. While the record was limited, the court concluded that the county's designations were not duly oppressive. And the court found that there was substantial evidence in support of the board's decision.
Seattle Mortgage Company v. Unknown Heirs of Gray, 133 Wn. App. 479 (6/14/2006) [Survival of energy conservation loan lien after mortgage foreclosed] The city of Tacoma has granted energy conservation loans to its electricity customers. One customer, who had previously secured a conservation loan, died and when her note to a mortgage company was not paid, the mortgage company foreclosed. Tacoma argued that the foreclosure did not extinguish its lien; it argued that the city could withhold service until the loan was repaid. The trial court disagreed, concluding 1) the deed of trust had priority over Tacoma PUD's conservation lien; (2) foreclosure of the deed would extinguish Tacoma PUD's lien; and (3) the purchaser at the foreclosure sale would take the property free and clear of Tacoma PUD's interest. The decision was affirmed on appeal. The loan was consistent with the constitution; the PUD could seek repayment; requiring repayment, while consistent with the constitution, was not mandated (there was no gift); there is no statutory or implied authority allowing the city to refuse service following the foreclosure; traditional lien priority provisions apply; and justice did not require the finding of an equitable lien in the city’s favor.
Colby v. Yakima County, 133 Wn. App. 386 (6/7/2006) [County responsibility to defend former judge in disciplinary hearing] The plaintiff was formerly a district court judge. He resigned his position after reaching an agreement during a disciplinary action. As part of the agreement, the plaintiff admitted certain violations of the judicial code of conduct. Thereafter, the judge sought the payment of attorney fees by the county for his defense before the judicial disciplinary board. Pursuant to county policy, the prosecuting attorney made a review and determined that representation at public expense was not authorized, since the judge's actions were not made in good faith under the scope of his judicial duties. The judge sued. The court of appeals concluded that while RCW 4.96.041 might authorize a defense, that statute must be read in conjunction with a local provision that denies coverage if the acts alleged in the disciplinary proceedings amounted to official misconduct. The co