Recent Court Decisions of Interest to Local Governments

This page provides a selection of recent court cases affecting cities, towns, counties, and special purpose districts in Washington State within the last five years, listed in reverse chronological order with the most recent first.

For a complete list of decisions published within the last 90 days, please visit Washington State Court Slip Opinions. To view older state court cases, please visit the Washington State Judicial Opinions Website.

2024

Prevailing Wages

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

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

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

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

Solid Waste Disposal

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

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

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

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

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

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

Water Utility Rates

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

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

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

2023

Jails

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

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

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

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

Lawful Nonconforming Use

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

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

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

Growth Management Hearings Board

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

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

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

County Sheriffs

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

Snaza v. State (9/14/2023) – In 2021, the Washington Legislature adopted legislation that, among other things, restricts the use of tear gas by law enforcement in response to riots. Seven counties and their county sheriffs contested one of the requirements in RCW 10.116.030(3), which requires law enforcement to obtain authorization from the highest elected official of the jurisdiction in which the tear gas is to be used. The counties contended that this requirement violates Article 11, Section 5 of the Washington Constitution, which provides that the Legislature shall prescribe the duties of county officers, such as the county sheriff. Under Washington case law, once those duties have been established, the Legislature cannot delegate the core functions of a county office to a different official.

The Washington Supreme Court found that a sheriff's discretion in determining what use of force is necessary to fulfill their duties based on existing particular circumstances is fundamental to their office. This discretion in lawful use of force is a core function of the sheriff's office. Since RCW 10.116.030(3) delegates or transfers to another official the sheriff's authority to exercise discretion in deciding the necessary use of force to quell a riot, it is an unconstitutional interference in the sheriff's core functions, and violates Washington Constitution Article 11, Section 5.

Public Records Act

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

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

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

Rights Granted by Access Easement

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

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

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

Water Rights

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

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

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

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

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

Inverse Condemnation

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

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

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

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

Public Works Contracts

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

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

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

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

Washington Voting Rights Act (WVRA)

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

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

State Environmental Protection Act (SEPA)

County correctly issued a determination of nonsignificance (DNS) on its land use code governing winery, brewery, and distillery facilities.

King County v. Friends of Sammamish Valley (6/12/2023) – This case involved challenges to a King County ordinance amending its land use code governing winery, brewery and distillery facilities. The ordinance was challenged before the Growth Management Hearings Board; the primary claim was that the ordinance would result in a proliferation of the facilities, which would have significant environmental consequences that the county failed to recognize and evaluate. The Board agreed and invalidated the ordinance. The court reversed the Board’s order of invalidity, concluding that the ordinance isn’t likely to lead to plaintiff’s predicted development and the county was correct in issuing its DNS. The court remanded the matter to the Board with instructions to reinstate the DNS and enter a finding of GMA and SEPA compliance.

Street Vacation—Nonuser Statute

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

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

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

Growth Management Act (GMA) Procedures

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

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

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

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

Recall

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

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

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

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

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

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

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

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

Tort Claims

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

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

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

Eminent Domain

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

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

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

State Environmental Protection Act (SEPA)

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

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

Constitutionality of City Ordinance

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

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

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

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

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

Public Duty Doctrine

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

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

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

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

Public Records Act

The one-year statute of limitations for Public Records Act (PRA) claims runs from the date on which an agency notifies a requestor that the request is closed, even when additional responsive records are subsequently produced by the agency.

Cousins v. Department of Corrections (1/31/2023) – A requestor filed a public records request with the Department of Corrections (Department). The Department responded by providing records in seven installments and closed the request on January 17, 2019. The requestor indicated to the Department, both before and after the request was closed, that she believed there were additional responsive records.

On July 2, 2020, the requestor sent the Department an email stating: “I am again requesting that you send me the remaining documents for my public disclosure request from 2016.” The Department produced an additional 10 installments consisting of over 1,000 pages of records, with the final installment being produced in August 2021.

The requestor sued the Department in January 2021, before the Department had finished producing the additional records. The Department argued that the requestor’s claim was barred by the one-year statute of limitations applicable to claims for violations of the PRA since the request was initially closed in January 2019. The requestor argued that the one-year statute of limitations should not bar a PRA claim when the agency produces additional records after initially closing the request.

The Washington Court of Appeals ruled that the one-year statute of limitations is a “bright line,” and bars a PRA claim that is filed more than one year after the request is initially closed, even when additional records are subsequently produced. Since the requestor knew at the time the request was closed that certain categories of records had not been produced, she should have filed suit prior to the expiration of the statute of limitations in January 2020. The court also clarified that the “discovery rule” does not apply to PRA claims, since the closure of a request enables requestors to know when their PRA claim has accrued.

2022

Collective Bargaining

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

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

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

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

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

Public Records Act

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

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

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

Landlord-Tenant Regulations

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

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

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

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

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

Employment Discrimination

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

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

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

Growth Management / Essential Public Facilities

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

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

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

Growth Management

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

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

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

Employment Discrimination

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

Suarez v. State (9/20/2022) – Plaintiff was a certified nursing assistant at a residential nursing facility for vulnerable, disabled adults that was staffed 24 hours a day, seven days a week. During the hiring process, she indicated that she did not want to work on Saturdays. A collective bargaining agreement (CBA) addressed vacation and leave requests and provided employees with two unpaid holidays for reasons of faith or conscience. The CBA also provided for a seniority system for bidding on jobs and shifts and mandatory overtime in certain situations.

Plaintiff sought authorization to take leave on several occasions, some of which were granted and some of which were denied due to staffing requirements. Plaintiff called her employer a few hours before a shift stating that she would not be coming to work because she was at a church function. The shift was one for which her previous leave request had been denied. Thereafter, her employer discharged her due to her history of refusing mandatory overtime and for failing to show up for her scheduled shift.

The Washington Court of Appeals reversed a grant of summary judgment in favor of the employer, holding that there was no indication that the employer attempted to resolve the scheduling concerns of the plaintiff by allowing her to switch shifts with other employees or apply for different positions that did not present schedule conflicts. As a result, under the WLAD, there was a material issue of fact of whether the plaintiff’s leave requests caused “undue hardship” for the employer. The court also held that the Plaintiff’s claim for wrongful termination in violation of public policy could go forward.

Torts / Risk Management

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

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

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

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

Venue

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

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

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

Public Records Act

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

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

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

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

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

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

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

Public Records Act

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

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

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

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

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

Taxation

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

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

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

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

Eviction Ordinance / Preemption

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

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

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

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

Land Use Petition Act (LUPA) / Venue

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

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

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

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

Public Records Act

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

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

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

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

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

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

Railway Easements & Superior Court Subject Matter Jurisdiction

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

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

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

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

Railroad Track Relocation

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

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

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

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

Land Use Petition Act (LUPA)

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

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

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

Firearm Preemption

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

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

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

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

However, the court noted that:

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

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

Emergency Powers

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

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

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

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

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

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

Business and Occupation (B&O) Taxes

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

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

Individual Commissioner Liability for Collective Actions of the Legislative Body

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

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

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

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

Public Records Act (PRA)

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

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

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

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

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

Open Public Meetings Act (OPMA)

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

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

Emergency Powers / Eviction Moratorium

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

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

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

Ballot Box Statute

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

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

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

2021

Mayoral and Council Powers / City Attorney Services

The power to hire or appoint a city attorney rests with the mayor if the council has made the position an "appointive office." Otherwise, the council has primary authority over contracts for legal services.

Koler/Land Use & Prop. Law, PLLC v. City of Black Diamond (12/27/2021) – The City of Black Diamond is a non-charter code city operating under the mayor-council plan of government. In 2016, the city council became dissatisfied with the city attorney’s legal advice and adopted a resolution terminating her contract. The mayor stamped the resolution "denied," claiming that the council did not have authority to terminate a contract for legal services. The city attorney resigned shortly thereafter.

Subsequently, both the mayor and the council attempted to contract for legal services from different law firms. In October 2017, the council sued the mayor seeking to compel her to recognize the contracts for legal services that the council had executed. In November, the mayor was re-elected, and two new council members were elected who were in alignment with the mayor. In January 2018, the City repudiated the contracts executed by the previous council and dismissed the lawsuit. The attorneys brought suit to collect their unpaid fees.

Under RCW 35A.12.020, a city may contract for legal services "either by appointment of a city attorney on a full-time or part-time basis, or by any reasonable contractual arrangement for such professional services." Under RCW 35A.12.090, if an ordinance provides the mayor with the power to appoint a city attorney, then the mayor may do so. Otherwise, the council has authority to make a reasonable contractual arrangement for legal services.

No city ordinance provided that the city attorney is an appointive officer. Therefore, the Washington Court of Appeals ruled that the council had authority to contract for legal services and terminate the services of the attorney retained by the mayor. It also ruled that the council had sufficient basis to seek independent counsel to address the dispute over authority to retain legal counsel.

Public Records

The names of university students found by a university to be responsible for a crime of violence or nonforcible sex offense are subject to disclosure under the Public Records Act (PRA).

Baxter v. Western Washington University (12/27/2021) – Three journalists made a public records request to Western Washington University (University) for the final results of disciplinary proceedings, including the student’s name, in which the university found that the student committed a crime of violence or nonforcible sex offense in the last five years. The University initially provided a table of the offenses and the resulting discipline imposed, but it redacted the names of the students pursuant to RCW 42.56.230(1) (personal information in any files maintained for students in public schools). The journalists sued under the PRA seeking disclosure of the names, and the University subsequently determined the names of the students were not exempt from disclosure. It provided third-party notice to the students, and seven of them sought an injunction barring disclosure of their names.

The Washington Court of Appeals ruled that the RCW 42.56.230(1) exemption only contemplates schools below the college and university level. It does not apply to university students. In addition, the Family Educational Rights and Privacy Act of 1974 (FERPA) exempts disclosure of student education records and personally identifiable information and can be an exemption in the PRA context. But the FERPA provides that the final results of a disciplinary proceeding against a student for a crime of violence or nonforcible sex offense is disclosable if the student was found to have committed a violation of the institution’s rules and policies. The Court of Appeals therefore affirmed the trial court order requiring disclosure of the unredacted disciplinary results.

State Environmental Protection Act (SEPA)

When a local government assumes lead agency status from another local government, the threshold determination made by the former lead agency is void, but the SEPA process does not need to start all over again. Only decisions made in reliance on the threshold determination that implicate SEPA are void.

City of Puyallup v. Pierce County (12/14/2021) – Pierce County issued a mitigated determination of nonsignificance (MDNS) under the State Environmental Policy Act (SEPA) for a warehouse distribution project bordering the City of Puyallup. Puyallup attempted to assume lead agency status so it could issue a determination of significance (DS) and prepare an environmental impact statement (EIS). In prior litigation between the City and the County, the Washington Court of Appeals ruled that the City could assume lead agency status.

On remand, the City argued that all county reviews, decisions, permits and approvals related to the project were null and void. The County argued that only decisions based on the MDNS were void and that land use applications for the project should be returned to the status of pending applications.

The Court ruled that the City’s order was too broad. Even though the MDNS was void, the SEPA regulations provide that reliance on decisions and reviews from a prior SEPA process “is logical and even required.” On the other hand, the Court noted that the County’s proposed order (which was adopted by the trial court) was flawed because it did not explicitly state that the MDNS was void.

Employment Discrimination

Termination of employee after she announced her pregnancy and intent to take parental leave created an issue of fact as to whether the employer’s stated reasons for discharge were a pretext for discrimination.

Crabtree v. Jefferson County Public Hospital District No. 2 (12/14/2021) – Jillian Crabtree started working as the manager of patient access services for the Hospital District in May 2018, and received her first performance review the following November. On a scale of 1 to 4, she received scores of 3 (meets expectations) in 12 out of 16 categories, but received a 2 (needs improvement) in the remaining 4 categories. She received extensive written feedback praising her strengths and providing insights on addressing areas where performance could be improved.

In December 2018, Crabtree informed her employer that she was pregnant and intended to take leave. She was asked if she wanted to return to a lesser role to which she responded "No. I like my job." In February 2019, the day after meeting with HR to discuss options for taking maternity leave, she was placed on a 30-day performance improvement plan (PIP) due to "large gaps" in her success and other "significant performance issues." Her supervisor also suggested she look for other jobs. During the PIP period, Crabtree made progress on her PIP goals, but did not complete any of them. She was terminated prior to the expiration of the PIP.

The trial court dismissed Crabtree’s discrimination claim on summary judgment. The Washington Court of Appeals reversed, finding that there was sufficient evidence to go to trial on whether the reasons for Crabtree’s dismissal were a pretext and whether discrimination was a motivating factor for the employer. Because direct evidence of discriminatory intent is rare, an employee may rely on circumstantial, indirect and inferential evidence to establish discriminatory action. The court noted that there were instances in which Crabtree’s termination letter downplayed or did not accurately state the progress Crabtree made on her PIP goals. It also appeared that some of the PIP goals had elements that were outside Crabtree’s control and could not reasonably be completed within 30 days.

Vested Rights / Utility Connection Charges

A preliminary plat application does not trigger vested rights with respect to utility connection charges.

Westridge-Issaquah II LP v. City of Issaquah (12/6/2021) – A developer entered into a development agreement with the City in June 1996. The agreement required the developer to install water and sewer facilities to serve the proposed development. In return, the City agreed to reduce or waive certain utility connection charges. The agreement provided for a "build out" period of 20 years. In November 2016, the developer delivered a notice to terminate the development agreement to the City. The notice triggered a requirement under the agreement that the City adopt new zoning and development standards for the properties. In March 2018, the City adopted an ordinance terminating the development agreement, providing for new regulations, and requiring properties in the development to pay the standard connection charges for water, sewer and stormwater.

Meanwhile, the developer filed a preliminary plat application in June 2017. The preliminary plat was approved and the developer subsequently applied for building permits for individual lots after the March 2018 termination of the development agreement. The City charged the full utility connection charge amounts for each lot, to which the developer objected.

The trial court ruled in favor of the developer, but the Washington Court of Appeals reversed. The Court of Appeals noted that the vested rights doctrine applies to ordinances that regulate the use of land and fee ordinances do not fall in that category. In addition, a preliminary plat application does not provide vested rights with respect to all conceivable regulations that may apply during the development process. The developer did not seek utility connections in its preliminary plat application—that happens during the building permit process. Any vested right a developer may have with respect to utility connection fees arises at the time the developer applies to connect to the utility systems and pays the applicable fee.

The Court of Appeals upheld the reasonableness of the City’s utility connection charges under RCW 35.92.025. It noted that adoption of fees under that statute is a legislative function and that a proportionality analysis under RCW 82.02.020 is not required.

Adverse Possession of Public Property

Claims of adverse possession against municipal property will fail under RCW 7.28.090 so long as the government has held the land for a public purpose.

Michel v. City of Seattle (11/8/2021) – Two plaintiff homeowners lived adjacent to a tract of land created in 1905 pursuant to a right-of-way deed for railway purposes. The tract was conveyed to the City of Seattle in 1951 for distribution of electricity. The city granted temporary permits in the 1950s and 1960s to the prior owners of plaintiffs’ properties for garden purposes and access to the nearest street. The permit did not prohibit installation of fences and other improvements. Seattle allowed and encouraged use of the tract for park and recreational purposes and entered into an agreement with King County and the City of Shoreline to use a portion of the tract as part of the Interurban Trail.

In 2018, Seattle sent a letter demanding plaintiffs remove fences and other encroachments on the tract. The plaintiffs sued, claiming they adversely possessed the portion of the tract they had fenced and used for landscaping purposes. They also claimed Seattle could not claim title to the tract because a clause in the 1905 deed indicated it would revert to the original owners when it stopped being used as a railway.

The Court of Appeals held that Seattle owned the property as it had adversely possessed the entirety of the tract by exercising exclusive control between 1951-1961 and that RCW 7.28.090 prohibited plaintiffs from claiming adverse possession of property that the city had held for public purposes, i.e., advancing the public’s wellbeing.

Civil Forfeiture

Civil forfeiture of a vehicle used in a drug transaction was grossly disproportionate under the excessive fines clause of the Eighth Amendment when the owner was indigent and the vehicle was his only asset.

Jacobo Hernandez v. City of Kent (10/25/2021) – Mr. Jacobo Hernandez was arrested and pled guilty to possession with intent to distribute methamphetamine. Mr. Jacobo Hernandez owned a vehicle valued at $3,000 to $4,000 that was used in connection with the crime. He had no other assets. The City of Kent initiated civil forfeiture proceedings to seize the vehicle. Mr. Jacobo Hernandez objected to the seizure, arguing that it violated the excessive fines clause of the Eighth Amendment.

The trial court upheld the civil forfeiture, but the Washington Court of Appeals reversed. It noted that the test for determining whether a fine is excessive has two elements—instrumentality and proportionality. The instrumentality element was met because the vehicle had a central role in the crime committed by Mr. Jacobo Hernandez.

The factors to consider with respect to proportionality include: 1) the nature and extent of the crime; 2) whether the violation was related to other illegal activities; 3) the other penalties that may be imposed; 4) extent of the harm caused; and 5) a person's ability to pay the fine. The court found that the first four factors weighed in favor of civil forfeiture. Relying on City of Seattle v. Long, the court found that the fifth factor made forfeiture “grossly disproportionate,” even though all of the other factors support civil forfeiture. Since Mr. Jacobo Hernandez was indigent and the vehicle his only asset, forfeiture of the vehicle amounted to the entirety of his personal estate and was therefore disproportionate under the Eighth Amendment

Nonconforming Uses / Moratoriums

Adoption of a moratorium on the siting of cannabis facilities did not alter underlying zoning provisions; a cannabis business that obtained a state license prior to adoption of permanent regulations prohibiting cannabis businesses established a legal non-conforming use.

Seven Hills LLC v. Chelan County (9/23/2021) – In November 2012 Washington voters approve I-502, which decriminalized the possession, use and production of cannabis, and directed the Washington State Liquor and Cannabis Board (Board) to establish licensing requirements for cannabis production, processing, and sales. In May 2014, Seven Hills submitted a plan to the Board to establish a cannabis production and processing business. In 2015, Seven Hills leased real property and improved it for the purpose of cannabis production and processing. In September 2015, Chelan County (County) adopted a moratorium on the siting of new cannabis businesses. On January 26, 2016, Seven Hills’ cannabis license was approved by the Board. On February 16, 2016, the County adopted permanent regulations that banned cannabis production and processing in the County.

The County brought a code enforcement action against Seven Hills, which was appealed to Washington Supreme Court. The county hearing examiner and the lower courts had ruled that Seven Hills had not established a legal nonconforming use prior to the County’s adoption of the moratorium. The Washington Supreme Court ruled that adoption of the moratorium did not change the underlying zoning, which at the time allowed cannabis production and processing. Since Seven Hills obtained its cannabis license from the Board three weeks before the County adopted permanent regulations prohibiting cannabis businesses, the Court found that it had established a legal nonconforming use.

Wage and Hour / Compensable Time

Whether time spent traveling out-of-town for agency-related work should be considered compensable hours worked under Labor and Industries regulations.

Port of Tacoma v. Sacks (9/21/2021) – The Port of Tacoma (Port) decided to purchase cranes from China. The Port invited Port-employed crane maintenance mechanics (hourly employees) to travel to China to observe the manufacture of crane components that they would later repair and to Houston for relevant training. The Port compensated the employee who flew to Houston for his training time but not his flight time. The Port negotiated with the union for the China travel, agreeing to pay the employees for a maximum of eight hours/day for travel to and from China and for days spent in China. As a result, the Port didn’t pay the employees for all of their time spent traveling (e.g., travel to/from airport, time spent at airport and all time spent in flight).

The employees filed wage claims with the Department of Labor and Industries (L&I) seeking compensation for all travel time. On appeal, the Court of Appeals agreed with L&I’s interpretation that the travel time for out-of-town travel is compensable “hours worked” under WAC 296-126-002(8), defined as “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed workplace.” Neither party disputed that the disputed hours were authorized or required by the Port. And, in finding the travel time was compensable, the court concluded: (1) the employees were “on duty” because they were engaged in an assigned task (travel) at the behest of their employer; and (2) the employees were on duty “at a prescribed workplace” because the Port dictated (or prescribed) the workplace by approving the means of travel and purchasing the plane tickets. The court remanded to the Superior Court on the issue of L&I wage calculations, allowing the Port to contest the factual basis and validity of the calculations.

Public Records Act (PRA)

Copy of public records request attached to a legal complaint served on the agency was a request for purposes of the Public Records Act. Trial Court fine award of $2,607,940 against agency was an abuse of discretion.

O’Dea v. City of Tacoma (8/24/2021) – An attorney representing a city employee on administrative leave mailed two public records requests to the city in March 2017. For reasons that are unclear, the city’s public records officer never received the requests and the city did not respond. The city terminated the employee in June 2017. In November 2017, the former-employee sued the city alleging PRA violations for failing to respond to the March 2017 requests. Copies of the public records requests were attached as exhibits to the legal complaint.

The city did not initially treat the requests attached as exhibits to the complaint as public records requests. It did not begin responding to those requests until approximately nine months after the complaint was served on the city. The trial court ruled that the requests attached to the complaint were public records requests and should have been processed as such beginning in November 2017. It awarded PRA penalties against the city in the amount of $2,607,940. In so doing, it imposed $10 per-day penalties per record from the time the city received the complaint to when it started responding nine months later.

The Court of Appeals affirmed the trial court’s ruling that the city should have processed the public records requests when it received them attached to the complaint in November 2017. Although the requests were exhibits, they each were labeled as a “public records act request” and addressed to the city’s public records officer. Therefore, the requests put the city on “fair notice” that it had received a request for public records.

The Court of Appeals reversed the trial court with respect to the amount of the public records penalties. It noted that there was no finding of bad faith on the part of the city. It also found the penalty amount was unprecedented compared with other PRA penalty cases on both an overall and a per-capita basis. It therefore ruled that the penalty amount was “manifestly unreasonable” and remanded for recalculation.

Vehicles and Homestead / Excessive Fines

Homestead protection automatically applies to vehicles used by their owners for habitation. City fines charged in connection with ticketing and impounding vehicle were excessive under the Eighth Amendment.

City of Seattle v. Long (8/12/2021) – The city impounded a vehicle owned by Mr. Long for violation of parking duration restrictions. Mr. Long lived in the vehicle and it was inoperable. Mr. Long challenged the parking infraction and impoundment of his vehicle, and both the trial court and the Court of Appeals ruled that the vehicle was subject to automatic homestead protections. For a more detailed discussion of the facts of the case and the Court of Appeals ruling, see MRSC’s August 2020 blog article.

The Washington Supreme Court agreed that vehicles used by their owners as residences are subject to automatic homestead protection. However, it found that Mr. Long could not use homestead laws to contest the validity of the impound of his vehicle. The Court went on to find that the fines assessed against Mr. Long for the parking infraction and impound of his vehicle violated the “excessive fines” clause under the Eighth Amendment. Notably, an individual’s ability to pay the fine is a factor to be considered in analyzing whether a fine is excessive. For more in-depth analysis of the Court’s decision, see MRSC’s September 13, 2021 blog article.

Public Records Act (PRA)

The one-year statute of limitations for claims under the PRA begins to run on the day after an agency’s final action with respect to a public records request.

Bogen v. City of Bremerton (8/10/2021) – An agency, after providing records in installments in response to a public records request, notified the requestor that it considered the request to be fulfilled and closed. The notice occurred on January 28, 2019. On January 28, 2020, the requestor sued the agency, claiming it had violated the PRA with respect to the records request. The agency claimed under the PRA’s one-year statute of limitations, the lawsuit had to be brought no later than January 27, 2020. The trial court agreed and dismissed the requestor’s lawsuit.

RCW 42.56.550(6) provides that PRA actions “must be filed within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis.” The Court of Appeals ruled that the statute of limitations began to run on the day after the agency notified the requestor that it considered the request to be fulfilled. In so doing, the court relied on RCW 1.12.040, which is a general provision that addresses how days should be counted for the purpose of state law. It provides that the time within which an act is to be done is computed by excluding the first day and including the last (unless the last day is a holiday, Saturday or Sunday, in which case it is also excluded). Based on that, the statute of limitations started to run on January 29, 2019, which means the lawsuit (filed on January 28, 2020) was timely.

Public Duty Doctrine

Whether the public duty doctrine applies in the context of a local government’s alleged negligence in responding to a 911 call for emergency medical assistance.

Norg v. City of Seattle (7/19/21) – Delaura Norg called 911 after her husband Fred suffered a heart attack. Although provided with the correct address, the Seattle Fire Department unit responding to the call went to the incorrect address and were delayed in their arrival to the Norgs' apartment. The 911 dispatcher stayed on the phone with Delaura the entire time. Fred survived the heart attack but suffered a brain injury and permanent cognitive and neurological deficits. The Norgs filed suit alleging the city was negligent in its response to the 911 call and the resulting delay aggravated the injuries.

The city argued the public duty doctrine barred the claim because the duty to respond to any 911 call is a public duty. The court disagreed, first finding that the public duty doctrine applies only when the duty at issue arises out of a statute or ordinance mandating action by the government entity. Here, the city has chosen to have the fire department provide emergency medical services; it is not mandated by statute or ordinance. In addition, the court disagreed with the city’s reading of the Supreme Court precedent holding no tort liability can ever arise out a governmental response to a 911 call because the duty to respond to such calls is a duty owed to the public in general. The court distinguished this precedent because the cases involved requests for police protection from a third party, not requests for emergency services. The court ultimately held that the duty at issue in the case is not a public duty owed to the general public at large but is instead a common law duty to exercise reasonable care in providing emergency medical services, therefore the public duty doctrine does not apply.

Termination of Public Works Contractor Based on Default

Whether the city properly terminated a road improvement contract and whether the city was entitled to an offset for defective work discovered after termination.

Conway v. Puyallup (7/8/2021) – Conway Construction Company entered into a contract with the city of Puyallup for road improvements. During construction of the improvements, the city issued notices to Conway describing concerns with the quality of pavement concrete, defects in utilities, and other construction defects; the city also reported unsafe work conditions to the state. On March 9, 2016 the city gave Conway notice of suspension and breach of contract, identifying nine breaches including defective and uncorrected work and safety concerns, and giving Conway 15 days to remedy the issues. Conway took steps to remedy and requested meetings with the city, which were denied. The city issued a notice of termination on March 25 based on default. Conway sued.

The Supreme Court agreed with the trial court’s decision that the termination was a termination of convenience, not of default. The Court found that the contract language specified that a default based on defective work was proper only if the contractor neglected or refused to correct the defective work, which Conway did not. The Court also noted that while the city had a right to be satisfied with the proposed remedy, they did not have the right to unreasonably withhold satisfaction, which they did primarily by refusing to further discuss any details with Conway. And, the Court held that Conway was not actually in default when the contract was terminated because they had made significant efforts to address the issues and repeatedly asked for meetings to discuss the efforts.

The Supreme Court also concluded that the city was not entitled to an offset for defective work discovered after termination where no notice was provided to Conway. The contract required notice of defective work and an opportunity to cure, which the city did not provide. Finally, the Supreme Court awarded attorney fees to Conway under the attorney fees provision of the contract, which awarded attorney fees to the prevailing party in a lawsuit arising out of the contract.

Tax Breaks for Recreational Land Sales to Government Entities

Whether tax breaks applied to land sales to the state made for recreational purposes must also be applied to substantially similar sales to the federal government.

Western Rivers Conservancy v. Stevens County (7/1/2021) – The Court of Appeals held that under the doctrine of intergovernmental tax immunity, if the State provides a tax break for a land sale to a state entity, that same tax break must be provided to a substantially similar land sale to a foreign sovereign, such as the United States Forest Service (USFS). In this case, Western Rivers Conservancy sold timberland located in Stevens County to the USFS, which the USFS planned to add to the Colville National Forest. Upon the sale, the county indicated it was removing the land’s forestland designation which triggered imposition of compensating tax. Western Rivers paid the tax under protest and brought suit challenging its imposition, arguing that the tax immunity doctrine should have prohibited imposition of the compensating tax.

The court found that the tax immunity doctrine prohibits taxation on a private entity based on the entity’s dealings with a separate sovereign and requires equal tax treatment unless there are significant differences between those who deal with one sovereign and those who deal with the other. The court held that the tax exemption at issue – which exempted from compensating tax all forestland sales to the Washington State Parks and Recreation Commission for recreation purposes – also applied to Western Rivers land sale to USFS because that sale was for recreation purposes. The court held that Western Rivers was properly granted summary judgement and awarded reimbursement of the tax, together with interest from the date of payment.

Minimum Wage Act

Regional 911 call center was not liable to employees for preparatory tasks required prior to starting shift; employee survey offered by employees’ expert was properly excluded because it was confusing and flawed and therefore would not have been useful to a jury.

Robertson v. Valley Communications Center (6/28/2021) – Employees brought suit against a regional 911 center alleging that they were not properly compensated for nine tasks that they were required to complete prior to the start of their shift. Their claims were based on the Washington Minimum Wage Act (MWA, RCW chapter 49.46). The tasks generally involved obtaining necessary resources and equipment and logging in prior to starting the shift. The employees were expected to be seated at their consoles and ready to work by one second past the top of the hour.

The trial court ruled that some of the tasks did not meet the definition of "work" and that others were "de minimis." It also found that the employee survey was confusing and flawed. The survey asked employees how much time they spent on each task “per shift” as opposed to “preshift.” The Court of Appeals noted that a significant number of respondents (18%) gave answers indicating that they spent more time on the tasks than they spent in the building prior to the start of their shifts. It therefore upheld the trial court’s exclusion of the survey as evidence. Since the employees conceded the survey was necessary to establish their claim for damages, the Court of Appeals ruled that it was proper to dismiss the case.

Prior to doing so, the Court of Appeals clarified that the "de minimis" doctrine does not apply to MWA claims. The "de minimis" doctrine is recognized under the Fair Labor Standards Act (FLSA), which is the federal counterpart to the MWA. Noting that the MWA is to be liberally construed in favor of employees and that there is no state authority for applying the doctrine to MWA claims, the Court of Appeals ruled that the trial court should not have applied it to the employee’s claims.

Open Public Meetings Act (OPMA)

Under the Open Public Meetings Act, a member of the public has the right to record public meetings provided that it is done in a way that does not disrupt the meeting.

Zink v. City of Mesa (6/1/2021) – A city resident sought to video record a city council meeting. She set up a mini-recorder with a tripod a few minutes before the start of the meeting. A councilmember and the mayor claimed that the resident needed permission to record and they indicated they did not want to be recorded. The resident refused to stop recording and the mayor called the police and requested that the resident be removed from City Hall. A sheriff’s deputy erroneously took the position that consent was required to record the meeting, told the resident she was trespassing and would be arrested if she did not either leave or stop recording. The resident continued to record, so the deputy arrested her and transported her to jail, where she was issued a citation and released. The resident later sued the city, alleging OPMA violations among other things.

The court noted that under RCW 42.30.040, an agency may not place a "condition precedent" on attending a public meeting. Although an agency may remove individuals who disrupt the ordinary conduct of business, there was no claim that the recording activity was done in a disruptive manner. Accordingly, the court found that the city violated the OPMA for prohibiting the resident from engaging in non-disruptive recording and removing her from the meeting. The court upheld a trial court ruling that the mayor and councilmembers had not received OPMA training and were not personally liable because they did not knowingly violate the OPMA. That finding should be taken with a grain of salt since the meeting in question occurred prior to the adoption of training requirements in 2014 pursuant to RCW 42.30.205.

Public Records Act

Whether a person operating a YouTube channel in their own name is a member of the “new media” for purposes of former RCW 42.56.250(8), which allows the new media access to records that are otherwise exempt - photographs and records showing the month and date of birth of public employees.

Green v. Pierce County (5/27/2021) – Brian Green submitted a public records requests for photos, birth date, rank, position, badge number, date hired and ID badge for all detention center, jail personnel and deputies on duty on a particular day. The county responded by providing 11 pages of records, but no photographs or dates of birth because they were exempt under former RCW 42.56.250(8). Green objected to the exemption, claiming he was entitled to the records as “news media” since he operated a YouTube channel called Libertys Champion. The county relied on the statutory definition of news media in the new media shield law, RCW 5.68.010(5), and denied access to the records. The court agreed with the county, and found that Libertys Media did not qualify as news media because it did not fit into any of the specific categories of traditional news media outlets and because Libertys Champion did not have a legal identity separate from Green. The court further found that Green, individually, also was not a news media entity under RCW 5.68.010(5).

Status of Municipal Court Judges as State Officers

Whether a municipal court judge is a state officer for purposes of article IV, section 4 of the Washington Constitution.

Ladenburg v. Henke (5/20/2021) – The Supreme Court held it did not have jurisdiction to issue a writ of mandamus or prohibition petitioned by municipal court judge David Ladenburg against presiding municipal court judge Drew Henke. Ladenburg had requested the Supreme Court issue the writ directing Henke to withdraw an order of consolidation she issued pursuant to General Rule 29. Article IV, section 4 of the Constitution gives the Supreme Court jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers. In denying the request, the Supreme Court found that “state officers” in Article IV, section 4 of the Constitution are “limited to those elected officials whom the state controls through appointment, salary and impeachment and who, in turn, wield some state-level authority.” After analyzing the factors, the court held municipal court judges are not state officers for purposes of Article IV, section 4.

Use of Force / Review of Arbitration Awards

A police officer was terminated for using excessive force on a handcuffed suspect. An arbitration board’s decision, reinstating the officer, violated the public policy against excessive use of force and was subject to judicial review.

City of Seattle, Seattle Police Dep't v. Seattle Police Officers' Guild (4/5/2021) – An officer investigating a possible domestic violence incident encountered an uncooperative individual and attempted to arrest her. As the officer was attempting to place the individual in a patrol car, the individual sat on the back seat and kicked the officer in the face. Approximately two seconds later, the officer struck the individual with his fist, causing a small orbital fracture.

The City thoroughly investigated the incident, after which the police chief decided to terminate the officer for using excessive force on a handcuffed individual. The Seattle Police Guild (SPG) requested that, pursuant to the collective bargaining agreement, a disciplinary review board (DRB) be convened as an arbitration panel to review the termination. The DRB found that the officer used excessive force but ruled that the officer should be reinstated with a 15-day suspension with duty modifications instead of being terminated.

The City appealed and the trial court ruled that the DRB decision was too lenient and violated the public policy against use of excessive force. The SPG appealed and the Washington Court of Appeals agreed with the trial court. It found that there is a public policy against use of excessive force in policing and that the DRB decision was so lenient that it violated that policy. Although a court’s ability to review an arbitration award is quite limited, public policy does provide a basis for review. Accordingly, the DRB decision was vacated and the termination decision of the police chief was allowed to stand.

Recall

Several individuals filed a recall petition against a city councilmember, alleging that several actions taken by the councilmember were grounds for recall. The Washington Supreme Court ruled that three of the charges were factually and legally sufficient and that one was not legally sufficient.

Recall of Sawant (4/1/2021) – The recall petition against the councilmember alleged four separate actions as grounds for recall. A court reviewing a recall petition must evaluate whether the charges are both factually and legally sufficient for the recall process to move forward. What follows is a description of each allegation and a summary of the court’s ruling:

Petitioners alleged that the councilmember delegated decision-making authority for hiring and firing councilmember staffing to an outside political organization (the “delegation charge”). The court ruled that the delegation charge was factually sufficient, but not legally sufficient. From a legal standpoint, the councilmember was free to structure her office’s internal decision-making processes as she wished, so consulting with an outside political organization about employment decisions was not necessarily a violation of the law.
Petitioners alleged that the councilmember used public funds to promote a ballot initiative under RCW 42.17A.555 and failed to properly disclose those expenditures (the “ballot initiative charge”). The court found the ballot initiative charge to be both factually and legally sufficient. Significantly, the court ruled that RCW 42.17A.555 may apply to expenditures made prior to approval of a measure for a ballot.
Petitioners alleged that the councilmember provided hundreds of individuals with unauthorized access to City Hall after hours at a time when City Hall was closed pursuant to a COVID-19 stay-at-home order (the “city hall charge”). The court found that the City Hall charge was legally sufficient (factual sufficiency was not in dispute). Although the councilmember had keys to City Hall, the court ruled that the voters are entitled to decide whether she “exercised her discretion in a manifestly unreasonable manner” or for “untenable reasons” in allowing the individuals access at a time when the facility was closed to the public.
Petitioners alleged that the councilmember lead a protest march to the private residence of the mayor, the location of which is protected under state confidentiality laws (“protest charge”). Some of the participants vandalized the mayor’s residence. The court found the protest charge to be factually sufficient because the councilmember had access to that information and that a voter could reasonably conclude that the protesters did not find themselves at the mayor’s private residence by accident. The court also found that the protest charge was legally sufficient because the City code prohibits councilmembers from using confidential information gained by reason of their official position for something other than a City purpose.

Public Records Act

Whether Seattle Children’s Hospital records related to a mold outbreak in the hospital that were shared with the King County Department of Public Health and the State Department of Health were exempt under the PRA, the HCIA or HIPAA.

Seattle Children’s Hospital v. King County (ordered to be published 3/22/2021) – King County Department of Public Health (KCPH) and the State Department of Health (DOH) investigated patient infections related to aspergillus mold at Seattle Children’s Hospital (SCH). At issue in the case was whether those records were exempt under the PRA, HIPAA, or the HCIA.

The Court of Appeals held that the Quality Improvement (QI) exemption in RCW 42.56.360(1)(c) only applies to records created specifically for and maintained by the QI committee. The records at issue here were created as part of an independent public health investigation by KCPH and DOC, and, even though the communications exchanged between SCH and the agencies may have been useful to SCH for its QI purposes, it was not information generated specifically for the QI committee.

The court further held the records were not exempt under RCW 42.56.360(1)(c), as that exemption protects records created by a hospital for reporting of health-care associated infections in cases of certain bloodstream infections and surgical site infections – and those were not the subject of these records.

The court first acknowledged that KCPH is a covered entity subject to HIPAA, although DOH is only subject to the HCIA. Under both laws, disclosure of medical records is allowed if the patient is deidentified. However, HIPAA establishes more robust, specific standard for deidentification, whereas HCIA does not. The court concluded that DOH has the discretion to apply the specific and more robust HIPAA protections when deidentifying health care information from records it intends to release for public inspection, but that this is not mandatory. The court then remanded to the trial court the issue of whether the records comply with patient privacy requirements in HIPAA and HCIA.

County Records / Discriminatory Covenants

A discriminatory restrictive covenant may be “removed” from the title of real property through the recording of a restrictive covenant modification document. RCW 49.60.227 does not require a county auditor to physically remove the discriminatory covenant language from county records.

May v. Spokane County (2/23/2021) – RCW 49.60.227(1) provides that a property owner may file a lawsuit seeking a court order striking from the public record covenants on the property to the extent they are discriminatory and void under RCW 49.60.224. A property owner sued to have racially discriminatory covenant language stricken from the title to his property. The property owner specified that he sought physical removal of the discriminatory language from the documents in the chain title for his property. The County responded that the integrity of the property records system requires that documents in the chain of title be left intact, even when they are recorded erroneously or void.

The Washington Court of Appeals ruled that RCW 49.60.227 does not require physical removal of discriminatory covenant language. The filing of a restrictive covenant modification document has the legal effect of striking the discriminatory covenant language even though the offending language itself is not physically removed from county records.

Firearm Regulation / State Preemption

City ordinance regulating firearm storage is preempted by state law.

City of Edmonds v. Bass (2/22/2021) – The City of Edmonds (City) adopted an ordinance making it a civil infraction for a firearm to be stored or kept unless properly secured with a locking device. The ordinance also made it a civil infraction if a minor, at-risk person, or prohibited person gains access to the firearm.
Shortly after adoption, two residents of the City brought suit seeking to invalidate the ordinance, arguing that it is preempted by RCW 9.41.290, which provides that the state legislature “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state…”

The Washington Court of Appeals found that the firearm owners had standing to challenge the ordinance and that the ordinance was preempted by state law. Although RCW 9.41.290 does not specifically refer to the “storage” of firearms, it does preempt regulations relating to the “possession” of firearms. The court found that storage falls within the concept of possession and ruled that the ordinances are therefore preempted by state law.

Recall

Sheriff statement that he would not criminally enforce a COVID-19 mask mandate is not sufficient grounds for recall.

Recall of Snaza (2/11/2021) – During the COVID-19 emergency, the Washington Secretary of Health issued an order requiring every person in Washington state to wear a face covering when in any indoor or outdoor public place. The order noted that violation of the order is a misdemeanor and “may” result in criminal penalties. The same day, a county sheriff encouraged the public to take safe and precautionary measures, including wearing masks. However, the sheriff indicated that deputies would not be criminally enforcing the Health Department order.

A county voter filed a recall petition against the sheriff, alleging that the sheriff’s statement amounted to a refusal to enforce the order, which constituted a failure to perform a duty imposed by law. The trial court agreed, reasoning that the use of the word “may” in connection with criminal penalties referred to a prosecutor's ability to prove a case rather than to an officer's discretion to enforce the law.

The Washington Supreme Court reversed, noting that while law enforcement officers have a duty to enforce the law, they have discretion in how they enforce the law. The use of the word “may” in the order supports the idea that the decision of whether to criminally enforce the order is discretionary. The sheriff noted that arresting individuals who violate the order places deputies at increased risk for contracting COVID-19. The court also noted that the sheriff said that the sheriff’s office would continue to partner with public health officials to educate the public on the benefits and need for wearing masks in public. As a result, the sheriff’s statement was not a blanket refusal to enforce the order.

Open Public Meetings Act / Definition of “Agency”

Washington State Bar Association (WSBA) is not an “agency” for Open Public Meeting Act (OPMA) purposes.

Beauregard v. Washington State Bar Association (2/11/2021) – After deliberating in what it referred to as an “executive session,” the WSBA terminated its executive director. The Plaintiff challenged the validity of that action, claiming the WSBA violated the OPMA and its bylaws by taking action outside a public meeting. The trial court ruled that the WSBA is subject to the OPMA, but that it lacked the “equitable power” to reinstate the executive director. It ruled that the WSBA was required to comply with the OPMA moving forward.

The Washington Supreme Court reversed. It noted that the OPMA applies to “public agencies” which are defined as: “Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature.” The WSBA was created as a voluntary association in 1888 and did not become a state agency until the passage of the State Bar Act in 1933. It therefore was not “created by or pursuant to statute.” In addition, the Washington Supreme Court is responsible for regulation of the practice of law in Washington, and in that regard, the WSBA is an arm of the court.

Conservation Districts; Removal of Supervisors

Washington State Conservation Commission (WSCC) may remove conservation district supervisors pursuant to state law without initiating recall proceedings; the process for removal is governed by the Administrative Procedure Act (APA) and not the Open Public Meetings Act (OPMA).

Johnson v. Washington State Conservation Commission (2/9/2021) – In response to complaints, the WSCC investigated two conservation district supervisors and determined that they had committed malfeasance and neglect of duty. The WSCC held a removal hearing under the OPMA instead of the APA. The supervisors were afforded certain procedural rights at the hearing, including representation by counsel, presenting and questioning witnesses, and entering exhibits. At the conclusion of the hearing, the WSCC voted to remove the supervisors from office.

The trial court reversed, ruling that the removal hearing should have been held under the APA instead of the OPMA. The Washington Court of Appeals agreed, but upheld the WSCC order removing the supervisors, ruling that the error was harmless because the supervisors received sufficient process. On the merits, the court upheld the constitutionality of RCW 89.08.200, which authorizes the WSCC to remove supervisors for malfeasance or neglect of duty. The court found that the state constitution leaves it “entirely to the legislature” to provide a method of removal, other than recall, for conservation district supervisors.

Impact Fees

City imposition of impact fees was an appropriate legislative exaction and was not excessive.

Douglass Properties II, LLC v. City of Olympia (2/2/2021) – Douglass applied for building permits to construct a mini-storage facility in the City of Olympia (City). The City determined that transportation impact fees in the amount of $167,580 were due based on the City’s rate schedule. Douglass had the option of requesting an independent fee analysis from the City. Douglass could also have performed its own independent fee calculation, but it declined to pursue either option. Instead, Douglass argued to the Hearing Examiner that the City had incorrectly calculated the number of trips per peak hour, the percentage of new trips, and a trip adjustment variable.

The City’s impact fee calculation was upheld by the hearing examiner, the trial court, and the Washington Court of Appeals. The Court of Appeals clarified that the nexus and “rough proportionality” requirements, as described in the United States Supreme Court cases of Nollan and Dolan, apply only to certain types of adjudicative and ad hoc monetary exactions. The nexus and rough proportionality requirements do not apply to more broadly applicable legislative exactions, such as impact fees imposed pursuant to RCW 82.02.050 et. seq. The court therefore upheld the City’s calculation of impact fees and awarded the City its reasonable attorney fees pursuant to RCW 4.84.370(1).

Anti-SLAPP Statute as Applied to Government Contractor

RCW 4.24.510, Washington’s anti-SLAPP statute, which provides immunity to a “person” who communicates a complaint or information to a public agency, applies to government contractors hired to perform an independent investigation.

Leishman v. Ogden Murphy Wallace (1/28/2021) – Ogden Murphy Wallace (OMW) was retained by the Attorney General’s Office (AGO) to investigate two related matters: (1) an AGO employee’s discrimination complaint; and (2) his supervisor’s allegation that the employee (Leishman) acted inappropriately during a meeting. Patrick Pearce headed the investigation for OMW. Leishman was unaware that the scope of the investigation covered both his discrimination complaint and his workplace conduct; the report concluded that Leishman’s discrimination complaint was unsupported and that his workplace conduct was inappropriate. Leishman was terminated and brought a lawsuit against the AGO, which was settled. Leishman then sued OMW and attorney Pearce, which argued OMW and the attorney had civil immunity under RCW 4.24.510, the anti-SLAPP statute. The statute provides immunity to “persons” who communicate a complaint or information to a public agency for claims based on the communication regarding any matter reasonably of concern to that agency. The Court held that OMW and Pearce are “persons” under RCW 4.24.510 because the statute encompasses individuals and organizations, regardless of whether they report information to a public agency pursuant to a paid contract. Therefore, OMW and Pearce are immune from suit.

Recall

Charges of incitement to violate the governor’s proclamation and of improper rehiring are held to be factually and legally sufficient to proceed to a recall vote of the Snohomish County sheriff.

In re Recall of Fortney (1/14/2021) – Multiple recall charges were filed against the Snohomish County sheriff, alleging: (1) failure to enforce the governor’s Stay Home-Stay Healthy proclamation; (2) incitement of the public to violate the proclamation; (3) mismanagement of county jail by failing to institute adequate policies and safety measures; (4) improper rehiring of three deputies previously discharged for misconduct; and (5) failure to investigate a deputy’s use of force related to a jaywalking incident.

The trial Court found four of the recall charges were factually and legally sufficient but did not allow the jail mismanagement charge to proceed. On appeal, Fortney agreed to stand for recall on the refusal to enforce the Stay Home-Stay Healthy proclamation and the Court reviewed the incitement, rehiring and failure to investigate charges. The Court allowed the incitement charge, the rehiring charge, and the unchallenged refusal-to-enforce the proclamation charge to proceed to the signature gathering phase.

First, the Court found the incitement charge to be legally and factually sufficient, because, on the county sheriff’s official Facebook page, Fortney: (a) indicated he would not enforce the proclamation; (b) proclaimed the proclamation to be unconstitutional and the governor’s judgement should be questioned; and (c) advocated that residents had the right to work (and at least one small business owner did open up his business post-Fortney remarks). While sheriffs do have discretion with regard to enforcement decisions, the Court stated that if he leveraged this discretionary power to refuse to enforce the proclamation with the objective of inciting noncompliance, the voters may determine this was a manifestly unreasonable use of discretion.

Second, the Court found the rehiring charge to be legally and factually sufficient because the sheriff used his discretion to reinstate deputies who had been discharged for serious misconduct. And, while sheriffs have a substantial amount of discretion with regard to supervising employees, recall charges based on discretionary acts are legally sufficient if an elected official exercised discretion in a manifestly unreasonable manner.

Third, the Court did not allow the failure to investigate use of force charge to proceed, concluding that the record did not provide identifiable facts to support the allegations of improper investigation.

Recall

Eight charges are held to be factually and legally sufficient to proceed to a recall vote of the Benton County Sheriff

In re Recall of Hatcher (1/14/2021) – A Benton County sergeant filed the petition to recall Benton County sheriff Hatcher after 90% of the Benton County Deputy Sheriff’s Guild unanimously voted to pursue recall. The recall charges were: (1) illegal appropriation of county ammunition for personal use; (2) illegal tampering of evidence related to his own unlawful acts; (3) interference in an investigation into his conduct; (4) violation of anti-discrimination policy by retaliating against complainant and witness; (5) illegal intimidation of public servants and witnesses in investigations into his conduct; (6) illegally making false or misleading statements to law enforcement and court; (7) illegally making false or misleading statement to public servants; and (8) falsification of a public record. An elected official may be subject to recall if they have committed acts of malfeasance or misfeasance while in office or violated their oath of office. The Court’s role is not to assess the truthfulness of the allegations but rather to evaluate whether the allegations are both factually and legally sufficient. A recall petition is insufficient if the official has a legally cognizable justification for the conduct and an official may not be recalled for discretionary acts unless the discretion was exercised in a manifestly unreasonable manner. After consideration of lengthy facts for each charge, the Court concluded that the alleged facts established a prima facie case of misfeasance, malfeasance and unlawful conduct for each charge of the eight charged made against the sheriff, of which there is no reasonable justification.

2020

Land Use Petition Act / Open Public Meetings Act (OPMA)

Denial of request to revoke helipad conditional use permit was proper because mere non-use of helipad did not constitute abandonment; Deliberation in closed session did not violate OPMA because the matter was quasi-judicial.

Tateuchi v. City of Bellevue (12/28/2020) – Kemper Development Corporation (KDC) applied for a conditional use permit for a helipad, which was granted in 2011. The helipad was operational in 2013. Between 2013 and 2016 there was only one helicopter landing, which occurred in 2015. Tateuchi filed an application to revoke the conditional use permit based on abandonment of the use.

The Bellevue Hearing Examiner denied the application, noting that KDC had continuously maintained and filed required reports regarding the helipad between 2013 and 2016. The Hearing Examiner found absence of landings did not result in abandonment given the other actions taken by KDC. On appeal, the Bellevue City Council deliberated in closed session and affirmed.

Tateuchi appealed to superior court under the Land Use Petition Act, arguing that the City misconstrued the word “abandoned” and that deliberating in closed session violated the OPMA. Both the superior court and the Washington Court of Appeals affirmed the City’s land use decision. The Court of Appeals found that a showing of intent to abandon was required and that Tateuchi had not done so. It also found that deliberating in closed session was not a violation of the OPMA because the matter was quasi-judicial in nature under RCW 42.30.140(2).

Recall

Recall petition alleging that mayor failed to adequately supervise police response to protests was insufficient because mayor’s actions and decisions were discretionary and not manifestly unreasonable.

Recall of Durkan (12/10/2020) – Petitioners filed a recall petition against the Mayor of Seattle, alleging that the mayor failed to respond to and adequately control the police response to protests arising from the killing of George Floyd. The allegations in the petition focused primarily on police use of chemical agents such as pepper spray and tear gas. The petitioners alleged that the mayor failed to establish policies and safety measures for police use of crowd control measures during the COVID-19 emergency, failed to enforce police compliance with City regulations and policies and use of appropriate de-escalation techniques, and wrongfully subjected peaceful protesters and bystanders to chemical agents.

The court noted that the mayor had taken some actions in response to police conduct with respect to the protesters. In an action for recall, an elected official is not subject to recall for the acts of subordinates done without the official’s knowledge and direction. In addition, an elected official may be recalled for discretionary actions or omissions only when those actions or omissions are manifestly unreasonable. The court observed that the petitioner’s allegations boiled down to an argument that the mayor should have taken additional steps to intervene and take control of the situation. Although the court found the allegations to be troubling, they did not meet the standards for a recall petition because the mayor’s actions, and decisions not to act, were not manifestly unreasonable.

Collective Bargaining

Whether collective bargaining occurs in private or public is a permissive subject of bargaining and the parties committed an unfair labor practice by reaching an impasse over the issue; the status quo doctrine is not an appropriate remedy as it doesn’t apply to permissive subjects of bargaining.

Lincoln County v. Public Employment Relations Commission (11/3/2020) – The county adopted a resolution requiring collective bargaining be conducted in public; Teamsters Local 690 adopted a resolution that required collective bargaining be conducted in private. As a result, the parties were unable to effectively bargain and each party filed an unfair labor practice (ULP) complaint alleging the other party refused to bargain. The court first rejected the Teamsters argument that the Legislature, by exempting collective bargaining from the OPMA, impliedly preempted the county’s resolution requiring collective bargaining occur at a public meeting. The court disagreed with the Teamsters argument; since the intent of the OPMA is to advance government transparency, it would frustrate the declared intent of the OPMA to prohibit resolutions like the county’s that required collective bargaining occur in public. The court also concluded that the procedures for bargaining procedure are permissive subjects of bargaining and that these procedures are not a managerial or a union prerogative. Therefore, neither party had the authority to impose its preferred procedure on the other. By insisting that their procedure be used, both parties committed a ULP – an impasse over a permissive subject of bargaining. Contrary to the Public Employment Relations Commision's (PERC) decision, the court further held that the status quo doctrine does not apply to permissive subjects of bargaining and remanded to PERC to reconsider their remedy.

LEOFF Retirement Benefits

Department of Retirement Services was equitably estopped from denying former police chief his LEOFF 2 retirement benefits even though the chief took a new position with the city after retirement.

Wilson v. DRS (11/2/2020) – Before retiring as chief of police for Federal Way, Wilson explored the idea of taking the position as chief of staff for the mayor (which he ultimately took after retiring as chief). Before taking the position, he understood, based on Department of Retirement Services (DRS) publication and communication from a DRS employee, that he was not prohibited from receiving retirement benefits after retiring even if he subsequently took a different position with the city. Wilson then terminated his position as chief of police, followed the separation of service steps as set forth in the DRS publications, and applied for retirement benefits. DRS denied Wilson’s retirement benefits concluding he never completely severed all employment with the city because he took the new position. After denying Wilson’s benefits, DRS revised its publication and the relevant WAC to indicate that termination of “all” employment with the employer does not occur if the individual accepts an offer of employment with the same employer before separating from the LEOFF position. The Court of Appeals held that Wilson has a contractual right to his LEOFF 2 benefits and equitable estoppel was properly asserted as a defense to DRS’s attempt to deny him his pension based on a changed interpretation of separation of service.

Recall of Elected Officials

Allegations in recall petition that a city councilmember encouraged residents to disregard COVID-19 emergency orders on social media were factually and legally insufficient.

In re Recall of White (10/29/2020) – A city councilmember made a series of social media posts on his personal Facebook account questioning the need for and encouraging residents to disobey COVID-19 stay-at-home and mask-wearing emergency orders. A city resident filed a recall petition alleging that such comments constitute misfeasance, malfeasance or a violation of the oath of office. The petitioner alleged that the councilmember encouraged members of the public to violate the law and interfered with the ability of state and local government officials to protect the public during a pandemic.

The Washington Supreme Court found the allegations to be insufficient grounds for recall. The role of a councilmember is legislative, and a councilmember does not have a general duty to enforce public health orders or to abstain from criticizing the actions of other public officials. In addition, although councilmembers take an oath to support the law, the oath cannot reasonably be construed within our system of divided government as an obligation not to criticize the law.

Voter Initiatives

Voter initiative that reduced motor vehicle excise taxes and fees and required Sound Transit to retire early, defease, or refinance existing bonds funded by previous voter-approved special motor vehicle excise tax funds was struck down for violating the single-subject rule and having a misleading ballot title.

Garfield Cty. Trans. Auth. v. State (10/15/2020) – I-976 was approved by Washington voters in November 2018. It is a measure that (among other things) would have:

Reduced or eliminated local motor vehicle excise taxes;
Changed the formula by which vehicles are valued for the purpose of calculating such taxes; and
Required Sound Transit to retire early, defease, or refinance existing bonds funded by previously voter-approved special motor vehicle excise tax funds if permissible under the bond contracts.

After passage, a number of local governments, associations and private citizens challenged the initiative as violating the Washington Constitution.

The Washington Supreme Court found that I-976 was unconstitutional and therefore invalid in two respects. First, the Court found I-976 violates Article 2, Section 19 of the Washington Constitution, which states that “[n]o bill shall embrace more than one subject, and that shall be expressed in the title.” The Court determined that I-976 violates the “one subject” provision because the requirement that Sound Transit retire, defease, or refinance bonds is not sufficiently related to the portions of I-976 that limit vehicle taxes and fees. Second, the Court ruled that I-976 violates the “subject in title” requirement of Article 2, Section 19 because the ballot title misleadingly suggested that voter-approved taxes would survive passage of I-976 and that voters would retain the ability to approve tax increases in the future. In fact, under I-976, the previous voter-approved taxes would not have survived and the statutes providing for voter-approved tax increases would have been repealed.

Special Purpose Districts

County did not have authority to enter into a sewer services transfer agreement and approve annexation of territory to a county sewer district to the extent it included territory outside the county limits.

Ronald Wastewater Dist. v. Olympic View Water and Sewer Dist. (10/15/2020) – In the early 1980s, King County sought to divest itself from sewer operations and transfer them to local water and sewer districts. King County agreed to transfer the Richmond Beach Sewer System (RBSS) to the Ronald Wastewater District (Ronald). A portion of the RBSS served properties in Point Wells in Snohomish County. King County held a public hearing and entered into a transfer agreement with Ronald, which purported to transfer the RBSS and the “area served” to Roland. The “area served” included the Point Wells, which was already within the Olympic View Water and Sewer District (Olympic). In 1985, the King County Superior Court approved the transfer to Roland pursuant to former RCW 35.94.410-440 (1985 Order), but Olympic was not a party to that action.

In 2009 Point Wells was designated by Snohomish County as an urban center and in 2016 Olympic amended its sewer plan to provide service to Point Wells. Snohomish County approved the amendment to the Olympic sewer plan, and Roland brought a declaratory judgment action seeking a ruling that Point Wells was within Roland’s corporate boundaries. Olympic contended that Point Wells was within its corporate boundaries, and that the 1985 King County Superior Court order was void to the extent it purported to transfer territory outside King County to Roland.

The Washington Supreme Court ruled that the 1985 Order was void because the court did not have subject matter or personal jurisdiction to annex Snohomish County territory to a King County special purpose district. Although water and sewer districts do have authority to provide service in multiple counties, such service must be provided with the consent or agreement of all affected entities. The same is true with annexation of territory from one district to another. Since Olympic was not a party to the 1985 litigation and never consented to annexation of Point Wells to Roland, the 1985 Order was void.

Open Public Meetings Act

Questions of fact existed regarding whether a series of communications between councilmembers and city staff about repealing an employee head tax were a serial meeting in violation of the OPMA.

Egan v. City of Seattle (9/8/2020) – The plaintiffs sued the City of Seattle, alleging that a series of communications leading up to a city council vote to repeal an employee head tax violated the OPMA. There were over two dozen communications on the matter that included councilmembers and staff, but no single communication included a quorum of the council. The communications occurred in a variety of ways, including in-person meetings, emails, phone calls and text messages. Prior to the council meeting at which the vote took place, the City prepared a press release. An earlier draft stated that repeal had “the support of a majority of the City Council.” That language was removed from the final draft of the press release, possibly on advice of legal counsel.

The court found that the communications that included councilmembers and staff did not constitute a serial meeting in violation of the OPMA because none of them involved a quorum of the council, and there was no evidence that any councilmember was aware of other communications involving other councilmembers and the Mayor’s staff. With respect to the draft press release, the court ruled that:

[I]f a quorum of a legislative body, such as the city council, collectively commits or promises to each other to vote — as a group — in favor of or in opposition to a piece of pending legislation at a future public meeting, then such a commitment may be evidence that a majority of the body attended a “meeting” with the collective intent to take an “action” in violation of the OPMA.

It remanded to the trial court for further proceedings on whether there was a collective decision to vote on the head tax repeal outside a public meeting.

Condemnation

Owner of condemned land entitled to additional compensation under relocation law.

Pacific Coast Shredding v. Port of Vancouver (9/1/2020) – The Port of Vancouver condemned land it leased to Pacific Coast Shredding (PCS), a scrap metal recycling operation; the land condemned overlapped with PCS’s truck traffic path and the area PCS used to pile shred material. As a result, PCS moved its truck traffic path and made other changes to its property, including reconfiguring a conveyor to accommodate the new path, relocating a rail spur, and upgrading storm water facilities, for a total cost of $6.1 million. Although PCS sought full reimbursement, the Port only paid $68,259, to cover the cost of moving personal property out of the condemned area.

PCS appealed to an administrative panel, which upheld the Port’s decision. On appeal, the Superior Court held that the taking required PCS to do more than just move personal property and remanded to the panel to consider whether PCS’s actions were reasonable and necessary in response to the taking and whether additional compensation was owed. The panel again denied additional compensation. PCS appealed, and the Superior Court ruled the panel violated its remand instructions, erred in denying additional compensation, and that PCS was entitled to some costs related to operational changes.

The Court of Appeals agreed that the panel erred in denying additional compensation for two reasons: (1) the superior court was acting in its appellate capacity, and its order to award some level of compensation for costs related to site changes was binding on the panel; and (2) since the panel established the taking impacted operations, it was a misapplication of the law and arbitrary and capricious for the panel to reject some additional compensation for this impact. The court remanded to the panel for entry of a final order awarding PCS additional compensation for relocation of shred material and reconfiguration of a piece of equipment.

Sufficiency of a Critical Areas Ordinance

County’s critical areas ordinance failed to comply with best available science and provided too much unchecked discretion to planning director to waive site assessments.

Whidbey Environmental Action Network v. Island County (9/1/2020) – This matter concerned whether Island County’s critical areas ordinance provided proper protection of the western toad, identified by the Department of Fish and Wildlife as a “candidate” and “priority” species whose priority area is “any” occurrence. Whidbey Environmental Action Network (WEAN) claimed the ordinance failed to properly designate upland occurrences of the western toad and that it gave too much discretion to the planning director to waive the requirement for a biological site assessment when development is located within 1,000 feet of habitat for protected species or a conservation area or buffer.

The Court of Appeals, Division 2, agreed that the County’s limited protection of “any occurrence” to only those occurrences that have been documented as of the date of ordinance adoption is contrary to the best available science in the WAC; the ordinance should provide for automatic designation of upland occurrences of the western toad when identified. The court also agreed that the authority given to the planning director to waive a biological site assessment is contrary to law because it gives the director nearly unfettered discretion, with no restrictions. This is contrary to the GMA because it does not ensure adequate protection of critical areas and contrary to the WAC, which requires a precautionary approach when waiving requirements that protect critical areas.

County Commissioners

Legislation requiring noncharter counties with populations of 400,000 or more to elect five commissioners and use district voting does not violate Article 11, Section 4 and 5 of the Washington Constitution.

Spokane County v. State (8/20/2020) – Spokane County challenged 2018 legislation (SHB 2887) that, beginning in 2022, requires noncharter counties with a population of 400,000 or more to have a board of commissioners with five members and district elections for commissioner positions. The County argued that the legislation violates Washington Constitution, Article 11, Section 4 (which requires the Legislature to establish a uniform system of county government) and Section 5 (which states the legislature may, by general laws, classify the counties by population and provide for the election of certain county officials).

The Court ruled that under Article 11, Section 4, “uniform system” means an organized plan that applies equally to everyone once put under a specific category within that plan or scheme. This provision does not require every noncharter county in the state to have exactly the same plan. The Court determined that distinctions based on county population is constitutional under Article 11, Section 4.

Similarly, Article 11, Section 5 provides that the legislature may, by general laws, classify the counties by population and provide for the election of certain officers in certain classes of counties. The Court interpreted this provision to mean that the legislature may classify counties by population for any purpose, and not just with respect to the election of “certain officers” in “certain classes of counties.” Accordingly, it upheld SHB 2887 and the requirement that noncharter counties with a population of 400,000 or more elect five commissioners with district voting.

Writ of Mandamus to Government Officials

A writ of mandamus may not be issued by a court to compel the State to release certain segments of the prison population due to the COVID-19 pandemic.

Colvin v. Inslee (7/23/2020) – Five inmates in the State prison system sought a writ of mandamus to accelerate the release of three categories of prisoners due to the risks of contracting COVID-19: (1) those with preexisting medical conditions that would be complicated by COVID-19; (2) those over age 50; and (3) those with release dates pending within the next 18 months. A writ of mandamus is an extraordinary remedy under which a court compels a government official to perform a mandatory act. Mandamus may not be used to compel the performance of act or duties which involve discretion on the part of a public official.

In a 5-4 decision, the Washington Supreme Court ruled that the inmates’ request was not one for which a writ of mandamus could be issued. The Court acknowledged the seriousness of the situation, stating that “the prison system faces a daunting challenge from a serious public health threat.” However, the Court noted that “the very legitimacy of the writ of mandamus in our constitutional system depends on its narrow nature—our job is to say what the law is, not to dictate how another branch should do its job.” The Court observed that although the executive branch has not taken the action demanded by the inmates, it has taken steps to lower the risk of COVID-19 transmission and to reduce the prison population through accelerated release of non-violent inmates. The Court concluded that while it has the authority to state what the law is, it is not empowered to dictate how executive officers perform duties in which they have discretion.

Land Use Petition Act

The 21-day appeal period under the Land Use Petition Act (LUPA) begins three days after a written land use decision is mailed by the local jurisdiction.

Confederated Tribes & Bands of Yakama Nation v. Yakima Cty. (7/2/2020) – A mining company applied for a conditional use permit to expand its operations from Yakima County (“County”). The Board of County Commissioners approved the permit by resolution dated April 10, 2018. Three days later, on April13, 2018, a county planner sent an email and letter to the Confederated Tribes and Bands of the Yakama Nation (Yakama) with the resolution attached. The letter noted the county code required written notification of the decision and stated that the administrative appeal had been exhausted.

On May 2, 2018, 22 days after the resolution was adopted and 19 days after the county planner’s letter, Yakama filed a LUPA petition in superior court. The County and the applicant moved to dismiss the petition as untimely under RCW 36.70C.040(4)(b), asserting that the 21-day filing period began on the date the board of commissioners passed its resolution, and Yakama’s petition was 1 day late. Yakama argued that, pursuant to RCW 36.70C.040(4)(a), the 21-day filing period began three days after the county planner sent the email and letter, and that the LUPA petition was therefore timely.

The Washington Supreme Court agreed with Yakama. It noted that the County’s code required the final land use decision be in writing and that the written decision be transmitted to Yakama. That requirement triggered RCW 36.70C.040(4)(a), which applies to a “written decision” issued by a local jurisdiction (notwithstanding the fact that the BOCC adopted a resolution approving the permit).

Public Records Act

A private company that contracts with the state to provide non-emergency medical transportation is not the functional equivalent of a government agency and, therefore, is not subject to the PRA.

McKee v. Paratransit (6/30/2020) – The State of Washington contracts with Paratransit to fulfill its obligation under the federal Medicaid program to provide non-emergency medical transportation. Paratransit is a private corporation whose operations are funded through its contracts with the State; it operates as a broker for the medical transportation by arranging for transportation with subcontractors or by providing the client requesting transportation with reimbursement. Paratransit invoices the State for services provided and for some administrative costs. In its contract with the State, Paratransit is identified as an independent contractor and is required to comply with Chapter 42.52 RCW, Ethics in Public Service. McKee utilized Paratransit services and submitted a request to Paratransit for certain records involving him. Paratransit provided the records, but informed McKee it was not subject to the PRA. McKee filed a complaint alleging Paratransit violated the PRA.

The trial court dismissed the case, concluding that Paratransit is not subject to the PRA. The Court of Appeals agreed. The court first found that the requirement for Paratransit to comply with chapter 42.52 RCW does not create a duty to comply with the PRA. The court next held that Paratransit is not the functional equivalent of a government agency because it does not meet any of the Telford factors: (1) it does not perform a core government function; (2) it is funded by the State through a fee-for-service model and reimbursement for costs model, which weighs against functional equivalency; (3) the State is not extensively involved with Paratransit’s day-to-day activities; and (4) Paratransit was not created by the government.

Homestead Act

A vehicle used as a residence is a homestead and the city cannot withhold the vehicle under threat of forced sale, releasable only upon payment of towing and impoundment costs.

City of Seattle v. Long (6/29/2020) – Seattle’s municipal code allowed for impoundment of a vehicle parked in the same location on city property for more than 72 hours. A tow truck operator then had a lien on an impounded vehicle pursuant to RCW 46.55.140(1) and owners were required to pay costs and fees in order to redeem the vehicle. If not redeemed, impounded vehicles were subject to auction 15 days after being towed and the proceeds satisfied the lien. Stephen Long used his vehicle as his residence and had parked his vehicle on a city-owned lot for longer than 72 hours. The vehicle was impounded; Long agreed to a payment plan and redeemed the vehicle. Long appealed the impoundment and payment plan.

The court held that, pursuant to RCW 6.13.030, a vehicle used as a residence constitutes a homestead and is automatically protected, without the need for the vehicle’s owner to file a declaration of homestead. The court indicated that a city does have the authority to ticket and tow a vehicle used as a residence, and to collect costs associated with towing and impoundment. However, it is a violation of the Homestead Act for the city to withhold a vehicle under threat of forced sale unless the owner pays the towing and impoundment costs. The court affirmed the trial court’s decision to void the payment plan.

The case also looked at whether the tow truck operator’s lien under RCW 46.55.140(1) attached to the vehicle in violation of the Homestead Act. The court applied judgment liens principles to the tow truck operator’s lien - judgment liens cannot attach to homestead property and the court concluded that a tow truck operator’s lien similarly cannot attach to a vehicle in violation of the Homestead Act. Furthermore, Long’s vehicle did not have a value above the homestead exemption, so there was no property to which the lien could attach. And, the court held that neither the impoundment nor the associated costs constituted excessive punishment under the Eighth Amendment and that Long’s substantive due process rights were not violated.

Indigent Defense

Local governments have been delegated the duty of providing indigent public defense and right to counsel and the State cannot be liable for a local government’s failure to meet this duty. The State could be liable if there is systemic and structural deficiencies in the public defense system delegating authority local governments.

Davison v. State (6/25/2020) – This class action arose from several allegations that the contracted public defenders for Grays Harbor County provided inadequate juvenile defense services. The plaintiffs argued the State and the Office of Public Defense (OPD) is liable for this inadequate public defense because they had knowledge or awareness of the county’s failure to provide adequate public defense. The plaintiffs also argued the state public defense system, which offers public defense at the local level, has systemic, structural deficiencies.

The Supreme Court dismissed all claims premised on the State’s and OPD’s alleged knowledge or awareness of the county’s failure to provide constitutionally adequate indigent public defense services. Noting that, while the State is responsible for enacting a statutory scheme under which local governments can adequately fund and administer a system of indigent public defense, counties and cities have been delegated the duties of providing indigent public defense services and safeguarding the right to counsel. If the local government fails to properly administer public defense standards to meet their duty, the State is not liable for this failure, even if it has knowledge of the failure.

However, the Court held that the State could be liable if there is systemic and structural deficiencies in the state system delegating authority local governments. The Court remanded the issue of whether “the current statutory scheme systemically fails to provide local governments, across Washington, with the authority and means necessary to furnish constitutionally adequate indigent public defense services.”

Public Records Act

City properly exempted portions of performance evaluations of city directors under RCW 42.56.230.

Church of the Divine Earth v. Tacoma (6/23/2020) – The Church of the Divine Earth submitted a records request to the city of Tacoma for five years of performance evaluations for the directors of the Department of Planning and Development Services and the Department of Public Works. The city provided the records, but redacted: (1) ratings and specific examples under the performance expectations section; (2) goals listed by employees and steps toward that goal under the goal development plan section; (3) employee and supervisor comments; and (4) employee’s overall performance rating. The privilege log cited RCW 42.56.230, RCW 42.56.050 and Dawson v. Daly to support the redactions and provided a reason for the redactions as “records, consisting of performance evaluations which do not discuss specific instances of misconduct.”

The Church filed a PRA complaint, alleging wrongful redaction and inadequate explanation; the trial court granted the city’s motion for summary judgment dismissing the case. The Court of Appeals cited Dawson v. Daly in its conclusion that, while performance evaluations are not a specifically enumerated exemption in the PRA, the evaluations can be exempt under RCW 42.56.230 as “personal information in files maintained for employees…to the extent that disclosure would violate their right to privacy.” In supporting its conclusion, the court first affirmed that performance evaluations are “personal information,” citing the Supreme Court’s conclusion in Dawson that “employee evaluations qualify as personal information that bears on the competence of the subject employees.” The court next turned to whether employees had a right to privacy in the evaluations because disclosure would be highly offensive and not of legitimate concern to the public. Here, due to the nature of the request for evaluations of specific employees, the city was unable to remove the identifying information from the performance evaluations to protect employee privacy. Therefore, disclosure of the evaluations would be highly offensive to a reasonable person. The court further held that, in balancing the public’s interest in disclosure against the public’s interest in efficient administration of government, no legitimate public concern justifies disclosure.

Finally, the court held the city’s brief explanation was sufficient. The city’s explanation cited the employee personal information statute (RCW 42.56.230), the right to privacy statute (RCW 42.56.060) and a pinpoint citation to Dawson, where the Supreme Court explained why performance evaluations are typically exempt. This provided the Church with sufficient explanatory information in order for the Church to determine whether the exemption was properly invoked.

Utility Tax

Cities have authority to impose excise taxes on water-sewer utilities; the taxes are not barred by the governmental immunity doctrine since the tax is imposed on a proprietary function, providing water-sewer services to ratepayers.

Lakehaven Water Dist. v. Federal Way (6/18/2020) – Federal Way adopted an ordinance levying an excise tax on all water and sewer utilities within the city; several water-sewer districts sued, arguing the city lacked express legislative authority to impose a tax on them, raising a governmental immunity defense, and arguing several constitutional theories. On direct review, the Supreme Court affirmed the trial court’s summary judgment in the city’s favor.

First, the Supreme Court agreed with the city that RCW 35A.82.020, which provides code cities with broad authority to impose business and occupation excise taxes, supplied the city with the appropriate taxing authority. The Court noted the statute provides the city with the authority to impose taxes on both public and private business entities. The Court also cited to Watson v. Seattle, which held that first class cities have the authority under RCW 35.22.280(32) to impose business and occupation taxes; therefore, code cities may exercise that authority as well. Notably, the Court dismissed the Districts’ Dillon’s Rule argument that the city must have “express” authorization to impose excise taxes on the Districts, stating “we recognize Dillon’s Rule as a vestige of the 19th century jurisprudence that no longer applies to code cities given current statutes.” The Court declined to extend King County v. Algona to perpetuate this mistaken “express” authorization requirement, affirmed the home rule principle that a general articulation of municipal taxing authority is sufficient, and held that RCW 35A.82.020 provides that authority.

Second, the Court confirmed that water-sewer service providers that operate under a ratepayer structure perform a proprietary function. Thus, the city could tax the gross revenue generated from the proprietary business activities; the governmental immunity doctrine, which bars one municipality from taxing another without express statutory authority, only applies to taxing governmental functions. The doctrine does not apply to the proprietary function at issue here – providing water-sewer services to ratepayers.

Finally, the Court dismissed the District’s constitutional due process and privileges and immunities claims for lack of standing.

Public Records Act

PRA statute of limitations did not restart upon production of later discovered records.

Dotson v. Pierce County (6/2/2020) – Kimberly Dotson submitted a records request to the county on May 19, 2016, which the county responded to in three separate installments, all provided on June 23. On June 28, the county received confirmation that the records had been retrieved by Dotson and, on June 29, the county sent a letter stating, “As you have received responsive records, I am closing your request.” The county later discovered additional records responsive to the May 19, 2016 request and provided those records on October 26, 2016 and November 7, 2016. Dotson filed a complaint on October 25, 2017, alleging the county violated the PRA.

The primary issue in the case was whether the statute of limitations barred the PRA claim. The court held the October 25, 2017 claim was time barred since the June 29, 2016 notification comprised a final definitive response and started the one-year statute of limitations for submitting a PRA claim. The court also rejected application of the discovery rule to PRA actions since the PRA statute of limitations “contains triggering events that enable a requester to know that a cause of action has accrued, and the legislature enacted no discovery rule exception.”

Special Assessments

Assessments for noxious weed control are special assessments and cannot be imposed against state owned land because the statute does not specifically authorize the special assessment against state land.

Kittitas County v. WSDOT (4/21/2020) – One of the ways in which the Kittitas County Noxious Weed Control Board funds its services is to levy a weed assessment against land; the board categorizes lands into classes based on the benefit received and then assesses an amount based on the land’s classification. The county levied weed assessments against Washington State Department of Transportation (DOT), which DOT stopped paying in 2017, claiming the weed assessments were special assessments and could not be levied against it.

The county brought a declaratory judgment action to require DOT to pay the assessment, arguing that the assessment was a rate. The trial court held it was a special assessment and could not be imposed on DOT; the county appealed. The Court of Appeals held that a weed assessment is a special assessment because the assessment pays for the Board’s services, including maintaining the county-specific noxious weed list, promulgating weed control regulations, and inspecting lands. To levy a special assessment against state owned land, there must be express authority authorizing the special assessment and the state owned land must receive a special benefit. Since the statutes do not provide explicit authority to impose a weed assessment against state owned lands, the court held the county cannot levy the special assessment against DOT.

Gift of Public Funds

Even though a third party provided the consideration and a private party benefited from the rent-free use of a railroad track on the port’s land, there was no unconstitutional gift of public funds.

Peterson v. Department of Revenue (4/16/2020) – After the Hanford nuclear reactors were decommissioned, the United State government transferred 800 acres of the surplused land to the Port of Benton. The transfer was subject to existing agreements and potential reversion to the United States if certain conditions were not met. One of the existing conditions granted two railroad companies who had helped build the track to Hanford Nuclear Reservation the right to use the track without paying rent. A taxpayer challenged the Port’s honoring of the agreement not to charge rent for use of the track as an unconstitutional gift of public funds. The trial court dismissed the challenge at summary judgment and the Court of Appeals agreed with the dismissal.

The Supreme Court affirmed there was no unconstitutional gift of public funds, focusing its analysis on whether there was donative intent and inadequate consideration thus resulting in an unconstitutional gift. The Court did not find any donative intent and held that consideration is not required to be paid by a private party and can be paid by a third party. Here, the transfer of land valued at $50 million from the U.S. government to the Port was adequate consideration for continued rent-free use of the railroad tracks. Further, the fact the railroads benefited from the Port honoring the agreements was not sufficient to convert a lawful contract into a gift of public funds.

Applicability of Land Use Act Petition

Permit condition imposed on request to connect commercial development to city water system is not subject to the Land Use Petition Act (LUPA).

Pioneer Square Hotel Co. v. City of Seattle (4/13/2020) – The developer of a hotel sought a water availability certificate (WAC) from the city allowing it to connect to the city water system. The developer had previously obtained a WAC in 1999 to connect to an existing six-inch water main in the right of way, but it had expired. The city required the developer to install a larger water main in the right-of-way as a condition of connecting to the water system. The developer objected and sought a declaratory judgment that the existing main was adequate to serve the development and that the condition was not reasonably related to the impact of the development. The city argued, among other things, that the lawsuit was not brought on a timely basis under LUPA, which requires a petitioner to file a petition in superior court within 21 days of issuance of a land use decision.

The trial court ruled that the developer’s lawsuit was governed by LUPA and that the developer’s claims were barred because it did not file suit within the applicable 21-day period. The Washington Court of Appeals reversed. The court found that the city’s WAC did not fall within the RCW 36.70C.020(2) definition of “land use decision” for the purposes of LUPA. The application to connect to the city water system was a request to use public property, which involves the city acting in its capacity as a property owner, as opposed to a regulatory capacity. In addition, the water availability determination did not apply ordinances or rules regulating the developer’s use of private property. As a result, the court found that the WAC determination is not the type of process that is subject to LUPA definition and remanded the case to the trial court for further proceedings.

Public Duty Doctrine

The public duty doctrine protected the county from liability for the death of an individual from hantavirus since, although the county has a duty to determine appropriate action when it receives a report of the hantavirus, this duty was not owed to the deceased as an individual.

Ehrhart v. King County (4/2/2020) – A woman living near Issaquah contracted hantavirus in November 2016. King County investigated the case and concluded that, since the woman contracted the virus on her own rural property, there was unlikely to be other exposures and a health advisory was not warranted. In February 2017, Brian Erhart – who also lived near Issaquah - contracted and died from the hantavirus.

Erhart’s widow sued King County Public Health among others, claiming the county failed in its duty to issue a health advisory after it learned of the November 2016 case. WAC 246-101-505 requires the county to “[r]eview and determine appropriate action” whenever it receives reports of certain serious condition. King County asserted the public duty doctrine as an affirmative defense, arguing it was not liable because it did not owe the deceased a duty as an individual. The trial court granted partial summary judgment dismissing the county’s defense, conditioned on the jury finding particular facts; King County appealed and the court accepted direct review.

The Supreme Court held that no exception to the public duty doctrine applied and King County did not owe a duty to the deceased as an individual; therefore, the claims were barred by the public duty doctrine. In particular, the Court analyzed the failure-to-enforce exception, noting that the WAC at issue doesn’t require the county take enforcement against anyone. The Court also held that the trial court could not grant summary judgment conditioned on the jury finding particular facts because summary judgment is appropriate only when there are no genuine issues of material fact. The Court reversed the trial court and remanded for entry of summary judgment in King County’s favor on its public duty doctrine defense.

Independence of County Clerk

When acting in an out-of-court capacity, the county clerk is independent from the court and the court cannot direct the clerk’s duties.

Burrowes v. Killian (3/19/2020) – Washington state counties are transitioning from paper systems to electronic systems for the management of court documents. Consistent with this transition, Michael Killian, who is the elected county clerk of Franklin County and who also serves as the clerk of Franklin County Superior Court, announced he would maintain only electronic files of court documents. In response, the superior court judges adopted a local rule requiring paper files. Killian refused to comply with the local rule. The judges sued to compel compliance with the local rule.

The Supreme Court held that local rule was invalid because the maintenance of court documents is an out-of-court duty of the county clerk and not an in-court duty of the superior court clerk. County clerks are independent from the court although superior court clerks are not. When a county clerk is acting as a superior court clerk and performing in-court duties, the clerk must follow the direction of the court (e.g., providing copies of court documents at the judges’ request). However, when the county clerk is performing out-of-court duties, the county clerk retains authority and the judges don’t have the authority to direct these duties (e.g., mandating court documents be kept in paper format).

Duty to Inspect Storm Manholes

City may be liable for vehicle damage caused by an uncovered manhole if the city should have reasonably anticipated the hazard.

Ogier v. City of Bellevue (3/2/2020) – Shannon Ogier drove over an uncovered manhole, resulting in damage to her car and injury to her shoulder. Ogier submitted a claim to the city for property damage and medical expenses. The city’s process was to inspect storm drain systems, including storm manholes, once every five years and respond to complaints about missing manholes immediately. A recent inspection detected no problems and the city had received no complaints about the missing manhole. The city had not issued any permits for work in this particular right-of-way and had no knowledge of who removed the manhole. However, the city was aware that third parties were able to remove manhole covers at any time and were aware of past instances of missing manhole covers. Further, after Ogier’s complaint, the city discovered that the manholes on the street should have been bolted down but were not, and the city knew it was not uncommon for covers to become loose. The trial court granted the city’s motion for summary judgment, finding that because the city had no notice of the defect, the city did not owe a duty to Ogier. Ogier appealed, and the Court of Appeals reversed the summary judgment issued in favor of the city because there were disputed issues of material fact as to whether the city breached its duty of care to Ogier. The court noted that a city has a duty to maintain its roadways in a condition safe for ordinary travel. Although the city did not have actual or constructive notice of the missing manhole, it was not clear whether the city should have reasonably anticipated the hazard.

Hazardous Waste Management Act

In analyzing whether a property owner violated the Hazardous Waste Management Act, the correct knowledge standard is whether a reasonable person in the same circumstance would have known the Act was violated; substantial evidence existed to support finding violations of the Act and other crimes.

State v. Pillon (2/28/2020) – Charles Edwin Pillon used his property to store, collect, accumulate and dispose of solid waste without a permit or license. Seattle and King County Public Health issued a notice of violation for unlawful storing and disposal of solid waste. A search warrant was secured and the search found high levels of arsenic, lead, cadmium and chromium in the soil samples as well as more than 50 vehicles and 400 tires, plus other materials on the site. The trial court found Pillon guilty of violating the Hazardous Waste Management Act, wrecking vehicles without a license and unlawfully dumping solid waste. The Court of Appeals affirmed the trial court’s decision, concluding, in pertinent part: (1) the trial court applied the correct knowledge standard and substantial evidence supports finding a violation of the Hazardous Waste Management Act; and (2) substantial evidence supports finding Pillon engaged in the business of wrecking vehicles without a license and with a prior conviction.

B&O Taxes

City’s method of apportioning B&O taxpayer’s income between in-city and outside-city sources was unconstitutional under the Commerce Clause.

City of Seattle v. KMS Financial Services (2/24/2020) – KMS Financial Services (KMS) sells securities through registered representatives, who are independent contractors, located throughout the country. KMS is headquartered in Seattle where it has approximately 50 employees. Seattle’s business and occupation (B&O) tax definition of gross income is based on RCW 35.102.130, which, beginning in 2008, requires that B&O taxes be fairly apportioned between taxing jurisdictions to reflect the location of the various interstate activities by which it was earned. Under that statute, all Washington cities with a gross receipts B&O tax were required to apportion service business income using a two-factor apportionment formula that averages a service income factor and a payroll factor.

In calculating its B&O taxes due to the City of Seattle, KMS included compensation (primarily commissions) paid to registered representatives outside the City of Seattle in the payroll factor. The City of Seattle disagreed, taking the position that since the registered representatives are independent contractors and not employees, their compensation should not have been included in the payroll factor calculation. Under the City’s interpretation, this resulted in an additional liability to KMS of approximately $500,000.

The trial court ruled in favor of the City of Seattle, but the Washington Court of Appeals reversed, holding that the City’s interpretation of its ordinance did not result in a “fair allocation” of gross income. Although the KMS registered representatives are independent contractors, the court found that under a plain reading of the applicable city code provision, they could have been treated as employees for allocation purposes. Because the City’s interpretation did not consider where and how KMS generated its income, it violated the Commerce Clause.

Public Works Security

Subcontractor’s claims against retainage and performance bond were not timely filed based on city’s stated substantial completion date and final acceptance date for the project.

State Construction Inc., v. Hartford Fire Insurance Co. (2/19/2020) – A general contractor got into financial difficulties towards the end of construction of a city community and aquatics center. The contractor defaulted and, pursuant to the performance bond, the surety took steps to ensure the project was completed. The City declared the work on the building to be “substantially complete” on April 1, 2016. The building was operational, but landscaping and punch list items remained. The City issued “final acceptance” on February 21, 2017. A subcontractor notified the City of its lien claim against the retainage and notified the surety of its claim against the performance bond 34 days later. The subcontractor brought suit against the City and the surety claiming it was owed money for project work and (among other things) asserting a claim against the performance bond and retainage. The trial court dismissed the claims as untimely and the subcontractor appealed.

The Washington Court of Appeals affirmed the trial court. With respect to the performance bond, it ruled that the 30-day filing period for performance bond claims under RCW 39.08.030 runs from the date of final acceptance. Since the subcontractor filed its claims 34 days after final acceptance, its claim was untimely. With respect to retainage, the issue was how to measure the 45 day period for filing a notice of lien pursuant to RCW 60.28.011. The statutory language provides that the notice of lien be filed “within forty-five days of completion of the contract work…” The court stated that while the contract may provide for when the 45-day filing period commences, in the absence of specific language, “completion of the contract work” generally refers to substantial completion, not final acceptance. Therefore, the court held that the subcontractor’s retainage claim was untimely.

Local Government Accountancy Act

City operation of telecommunications network as part of its electrical utility is not a violation of the Local Government Accountancy Act because the network is part of the utility operations and does not constitute a “separate undertaking.”

Coates v. City of Tacoma (2/11/2020) – In 1996, the City of Tacoma adopted an ordinance authorizing creation of a telecommunications system as part of its electrical utility. Some of the functions of the telecommunications system related to traditional electrical utility functions, but the ordinance also authorized the City to provide television, internet and other types of telecommunication services. At the time, the City brought a declaratory judgment action with respect to the validity of the ordinance in which the court ruled that the City was authorized to provide telecommunications service. The City built the telecommunications network, which is known as “Click!”

The current case was brought by Tacoma ratepayers who alleged that the electric utility and Click! are separate undertakings, and that the electric utility is improperly subsidizing Click! The ratepayers argued this constitutes a violation RCW 43.09.210 (Local Government Accountancy Act) which prohibits one government entity from receiving services from another government entity for free or at reduced cost absent a specific statutory exemption. The trial court ruled in favor of the ratepayers, but the Washington Court of Appeals reversed. It found that in deciding to implement the system, the City focused on the benefits that Tacoma Power would receive with regard to electric generation, transmission, and distribution. Therefore, there were not separate undertakings, and no violation of RCW 43.09.210.

Public Records Act

PRA violations found because the city improperly applied the specific intelligence information exemption in RCW 42.56.240(1) and the city’s interpretation of a records request was too narrow, resulting in an inadequate search.

West v City of Tacoma (1/28/2020) – In 2013, the city purchased surveillance technology (known as “Stingray”). As a prerequisite to purchasing this technology, the city entered into a nondisclosure agreement with the FBI which prevented the city from disclosing the existence of the technology to the public and required consultation with the FBI prior to disclosing information about the technology. Plaintiff West requested records related to the technology. The city provided records, but (at the request of the FBI) redacted information about the make, model and prices of the equipment under the specific intelligence information exemption in RCW 42.56.240(1). The requestor appealed the applicability of the exemption and claimed the city performed an inadequate search.

The court narrowly defined “intelligence information” as “gathering or distributing secret information, information about an enemy, or conclusions drawn from such information” and defined “specific” as “disclosing particular methods or procedures or gathering or analyzing intelligence information.” The court held that the make, model, and price failed to meet this definition and, therefore, the city’s redactions were improper. Although the FBI submitted an affidavit explaining why the information should be exempt, the court was not persuaded.

The court also held the city’s search was inadequate. West requested, “Any records concerning any agreements, policies, procedures, or understandings related to the acquisition, use or operation of stingray technology.” The city didn’t conduct an email search because it interpreted the request as seeking documents specifically related to the acquisition, use and operation of the technology, which it provided. The court found this search inadequate as the city had email communications about the technology, including responses to a reporter’s questions about the technology and what the nondisclosure agreement allowed to be released. The court deemed these email communications responsive to West’s request.

Last Modified: April 01, 2024