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.
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.”
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.
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.
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.
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.
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.”
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.
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.
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:
- 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 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.
Growth Management Act (GMA) Procedures
GMA challenge to rezone ordinance must be filed with the GMA Hearings Board and served on other parties within 60 days of ordinance publication.
Kenmore MHP LLC v. City of Kenmore (2/8/2022) – The City of Kenmore (City) adopted an ordinance amending its municipal code and updating its zoning map to rezone certain areas as manufactured housing community districts. The ordinance was published on April 18, 2019. On Friday, June 14, 2019, Kenmore MHP LLC 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. WAC 242-03-230(2) provides that petitions 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 not served on the City within 60 days of publication of the City’s ordinance.
The City moved for summary judgment based on MHP’s failure to comply with the service requirements. The Board granted the motion, ruling that there was not a “justifiable excuse” for failure to serve the City in a timely fashion, and therefore, the test for substantial compliance had not been met. On appeal, the county superior 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 City appealed to the Washington Court of Appeals, which reversed the superior court and reinstated the Board’s decision. In so doing, it noted that an agency carrying out its administrative functions is generally best qualified to interpret its own rules. “Substantial compliance” is not a defined term and there are a variety of definitions in other regulatory contexts. The Board relied on a definition used by federal courts in connection with serving the federal government under the federal rules of civil procedure. The Court of Appeals ruled that the definition, including the justifiable excuse element, was plausible and therefore deferred to the Board’s interpretation.
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.
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.
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.
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 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.
2018 Legislation that altered the method for determining prevailing wages for public works projects is an unconstitutional delegation of legislative authority because it requires the industrial statistician to adopt rates based on the highest wage rate in a collective bargaining agreement in a particular county.
Associated General Contractors of Washington v. State (8/31/2021) – Legislation adopted in 2018 changed the method by which prevailing wages are calculated by the industrial statistician at the Department of Labor and Industries. Previously, the industrial statistician conducted wage surveys on a county-by-county basis to determine the prevailing wage for a trade or occupation in a particular area. SSB 5493 amended RCW 39.12.015 to provide that the industrial statistician shall set the prevailing wage rates by adopting the rates used in collective bargaining agreements (CBAs) in the county. Under the legislation, if there is more than one CBA for a trade or occupation in a county, the higher rate prevails.
The Court of Appeals found that this approach violates the “non-delegation doctrine” under the Washington Constitution, which vests legislative authority in the state legislature. The legislature may not abdicate or transfer the legislative function to others. On the other hand, the legislature may delegate authority if it (1) provides adequate standards or guidelines and (2) imposes sufficient procedural safeguards. The court noted that legislation did not provide adequate standards since the industrial statistician would potentially need to rely on CBAs that were not in existence at the time SSB 5493 was adopted. Similarly, the legislation did not provide procedural safeguards to prevent abuse or collusion. As a result, the court found that RCW 39.12.015(3) is invalid under the non-delegation doctrine.
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 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 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.
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.
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.
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.
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.
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.
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 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.
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 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.
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.
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.
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.
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.
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.”
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.
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.
Intimidating a Public Servant
RCW 9A.76.180, the intimidating a public servant statute, must be applied to true threats alone, otherwise it is unconstitutionally overbroad because it restricts a substantial amount of protected speech.
State v. Dawley (12/30/2019) – The defendant Dawley made frequent calls to the Island County Communications (I-COM) nonemergency line to report complaints. The intimidating a public servant charge stemmed from an interaction Dawley had with two police officers after reporting two illegally parked cars. After the interaction, Dawley communicated with the Oak Harbor police chief and the city attorney, making comments they viewed as threatening, including how he would show up at their homes or how he would send violent offenders to their homes. He then made a public records request for records on violent offenses resulting in physical harm; he was arrested after filing the request, charged with intimidating a public servant and convicted.
On appeal, the Court of Appeals, Division One, considered whether RCW 9A.76.180 is unconstitutionally overbroad. The court concluded the statute reaches a substantial amount of constitutionally protected speech, regulates pure speech, and is subject to strict scrutiny because it is a content-based restriction. Therefore, the court held that “the only constitutionally permissible limiting construction to save the intimidating a public servant statute when the jury is instructed on the definition of “threat” from RCW 9A.04.110(28)(j) is to limit the statute to true threat alone.” The court then held that Dawley did not issue a true threat against either the police chief or the city attorney as he made no serious expression of intention to inflict bodily harm or take the life of another individual. The court reversed Dawley’s convictions for intimidation of a public servant.
Public Records Act
A jurisdiction cannot adopt a rule requiring administrative review of a public records request denial before a person can file a lawsuit to obtain a record.
Kilduff v. San Juan County (12/12/2019) – Kilduff made a public records request to the county. He received one installment and was told additional records would be provided. Kilduff had a discussion with the prosecuting attorney (and there is disagreement as to what was agreed to) and thereafter Kilduff was given redacted records, without an exemption log, and was told “This email response and attachment fulfills your public records request.” He was not told if there were other records that were not being provided. Kilduff sued, alleging that there had not been an adequate search and responsive records may have been withheld. The county denied the allegations and argued that Kilduff had not exhausted administrative remedies, as required by a county code section, before filing a lawsuit.The code provided that administrative remedies would not be considered exhausted “until the prosecuting attorney has made a written decision, or until the close of the second business day following receipt of the written request for [the prosecuting attorney's] review of the action of the public records officer, whichever occurs first.” The trial court concluded that the county had not yet made a final decision and thus there was no final decision to review. That decision, as well as several others, was appealed to the Supreme Court.
On appeal, the Court held the county code provision invalid because the PRA does not authorize counties to require public records requesters to exhaust administrative remedies before filing suit. The PRA requires agencies to establish mechanisms for prompt review of denials and review "shall be deemed completed at the end of the second business day following the denial of inspection.” The county argued that the code provision allowed for prompt review and reinforced its willingness to do more if requested. The court noted that the requester must wait an indeterminate amount of time for responsive records and hope that the county has fully complied with his or her request. The Court rejected the county’s argument. The county argued that it had not given its final answer, but the Court rejected that, finding the county’s response that the request had completed its obligation was a final answer. The county contended that it had given its final answer and, if Kilduff wanted more, all he had to do was ask. But the PRA does not require an exhaustion of administrative remedies once a final answer has been given. While local rules and regulations are possible, they cannot undermine the requirements of the PRA. The PRA model rules do not require an administrative review before a lawsuit can be filed. The county’s code requirement for administrative exhaustion is invalid and the trial court’s action to dismiss Kilduff’s action was an error.
In addition to a charge for the administrative costs associated with the issuance of a franchise, a county can impose a fee for a utility’s use of county rights-of-way.
King County v. King County Water Districts (12/5/2019) – King County passed an ordinance requiring water districts pay for the use of rights-of-way for the location of water delivery systems. The payment for use would be in addition to payment of administrative costs associated with the grant of a franchise. Water districts from King County sued, arguing that the county did not have authority to impose such fees, that utilities have the right to use the right-of-way without payment, and that the fee is really an unlawful tax. The trial court ruled in the water district’s favor and, on direct review by the Supreme Court, the decision was reversed.
King County may charge the district for use of the county rights-of-ways; it is not a tax but rather is a bargained amount allowing a utility district to make use of right-of-way for the operation of the utility. It is not a tax; it is more like the charging of rent for the use of the right of way. Issuance of a franchise is discretionary and, if granted, its terms are negotiable. The county cannot force a utility to accept its terms, although, if there is no agreement, the utility will not be able to make use of the right-of-way absent some other authority to do so. King County is a home rule county with broad legislative authority. With its authority the issue is not so much whether it can require a franchise fee, it’s whether there is anything that would prevent it from doing so. There is no conflict between either the state statutes or constitution. Water and sewer districts, as well as private utilities, do not have the right to make use of county right-of-way without a franchise.
A First in Time (FIT) ordinance requiring landlords seeking to fill a rental vacancy to provide notice of their rental criteria, screen completed applications in chronological order, and offer tenancy to first qualified applicant is constitutional.
Yim v. City of Seattle (11/14/2019) – Seattle adopted an ordinance (referred to as the FIT (First in Time) rule) requiring landlords seeking to lease a dwelling to provide notice of their rental criteria, screen completed applications in chronological order, and offer tenancy to the first qualified applicant, with as few exceptions. Yim, along with other landlords, challenged the ordinance, arguing that it facially violated their state constitutional rights. Yim argued that the ordinance was a per se regulatory taking for private use, infringed on his substantive due process rights, and facially on his free speech rights. The superior court agreed, and the case was granted direct review to the Supreme Court. The Supreme Court reversed.
The Court first concluded that the FIT rule did not violate the U.S. Constitution Amendment 5 nor Washington Constitution Article I section 16. If the rule involved “excessive regulation,” it could be considered inverse condemnation, a “regulatory taking,” and in violation of the constitution. Yim argued that the regulation in this instance was a per se regulatory taking as the regulation destroyed a fundamental attribute of ownership, the right to exclude others and dispose of property. The Court responded, indicating that it applies a federal definition of regulatory takings, not an independent state definition. Yim has not shown that the FIT rule facially meets the regulatory takings definition. The definition of regulatory taking goes only to the initial determination of whether "'property has actually been taken." The public/private use distinction goes only to the appropriate remedy once a taking has been established—compensation or invalidation. There are two per se categories: one if the property owner suffers a permanent physical invasion of their property and the other if the owner has been completely deprived of all economical use. If the alleged regulatory taking does not fit into either category, the court will make a case-by-case determination. Yim’s arguments do not fall into either per se category; Yim did not show that the FIT rule facially effects a regulatory taking (does not on its face require property owner to suffer a permanent physical invasion of his property or a permanent physical invasion of the property).
The FIT rule does not facially violate substantive due process. The rule is subject to a rational basis review, not a heightened standard of review. The law regulating the use of property violates substantive due process only if it "fails to serve any legitimate governmental objective," making it "arbitrary or irrational." Seattle’s FIT rule was adopted to mitigate implicit bias in tenancy decisions. The court recognized the importance of mitigating implicit bias; the plaintiffs did not show that implicit bias must be allowed to continue. The FIT rule also is rationally related to its purpose. The FIT rule is based upon a recognized best practice. The plaintiffs did not meet the heavy burden of showing the rule violates substantive due process as a matter of law.
The FIT rule does not violate the right to free speech. The rule is subject to “deferential scrutiny.” The law requires factual disclosures by commercial speakers. Review is differential because a person’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. The advertiser’s rights are protected if disclosure requirements are reasonably related to the state’s interest in preventing deception. The FIT rule does not place any restrictions on what a landlord’s criteria will be or how they should be worded; the rule only requires that landlords disclose factual information about their own rental criteria. The city met its burden of proving the rule survives deferential scrutiny; the disclosure requirement does not unduly burden the plaintiffs’ free speech. The city proved that the rule addresses a harm that is potentially real, not purely hypothetical.
While the determination of the staffing levels of firefighters is, generally, a management right, it may be determined to be a mandatory subject of bargaining after balancing work and safety.
City of Everett v. Public Employment Relations Commission (10/28/2019) – During bargaining between the city and its firefighter’s union, the union sought to increase the minimum crew levels of firefighters and paramedics on duty for a 24-hour shift.The city filed an unfair labor practice complaint against the union’s intent to bargain to impasse on its staffing proposal. The Public Employment Relations Commission (PERC) concluded that the issue was subject to mandatory bargaining. The city appealed, arguing that shift staffing is not per se a mandatory subject of collective bargaining and, even if it was, PERC erred in balancing the interests of workload and safety.
On appeal, the court of appeals affirmed the PERC decision. Parties must bargain in good faith on mandatory subjects. If they reach an impasse, the dispute is resolved by interest arbitration. On the other hand, while the parties may bargain on nonmandatory or permissive subjects, they are not required to do so. It is an unfair labor practice to insist on bargaining a nonmandatory subject to impasse.
Where a subject of collective bargaining relates to working conditions and a managerial prerogative, the scope of bargaining is determined on a case-by-case basis by a "balancing approach." The Court concluded that PERC did not err in balancing the union’s interests with those of the city. Shift staffing would typically be a permissive subject of bargaining. However, the union presented “compelling evidence” that the firefighters’ interests in workload and safety outweighed the city’s right to determine the number of firefighters assigned to a shift. PERC’s decision to not consider cost information was not arbitrary and capricious and was not an error since the city had not provided relevant information to the union other than at the hearing. The union provided information that staffing had a direct relationship to firefighter workload and safety; the city did not challenge or rebut that evidence. The court found that substantial evidence supported a finding that an increase in the number of calls directly impacted firefighter safety; shift staffing has a demonstrably direct relationship to workload and safety. Balancing resulted in a determination that staffing in this instance was a mandatory subject for bargaining.
Public Records Act
A state employee's full name and date of birth are not exempted from disclosure, either by the Public Records Act or the state constitution.
Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss (10/24/2019) – The Freedom Foundation made a public records request for the full names, associated birthdates, and work email addresses of employees from several state agencies. The state agencies determined that all of the requested records were subject to disclosure and would be released. However, several unions representing the state employees sought a permanent injunction to prevent the release of employee names, dates of birth and work email addresses. The request for a permanent injunction was denied. The unions appealed and the court of appeals granted a stay for the release and held that Article I, section 7 of the state constitution did not create a privacy interest against the disclosure of names and associated birthdates. The case was then appealed to the Supreme Court. The Supreme Court, in a split decision, reversed the court of appeals and authorized the release of the names and birth dates. The work email addresses had been released and were no longer at issue.
The Public Records Act (PRA) does not provide an exemption for the names and associated dates of birth of employees. The Court must construe the PRA exemptions narrowly. The only exemption for dates of birth is for the dependents of employees. See RCW 42.56.250(4). The unions also argued that RCW 42.56.230(3) exempts personal information maintained for public employees to the extent disclosure would violate their right to privacy. The Court noted that dates of birth are already disclosable in different situations, such as for voter rolls. The court recognized that there are concerns about misappropriation of birthdates, but that does not mean they are private and exempt. Even though there are concerns about identity theft, the court must uphold other policies (such as for public disclosure) when there is a conflict. As to constitutional privacy arguments, the Court has never recognized confidentiality or nondisclosure of personal information as a fundamental right. The Court will undertake a balancing test to determine if disclosure of personal information can be required when it serves a legitimate governmental interest. Birthdate information is already available, and it does not rise to the level of intimacy as does other information, such as medical information. The names and birthday dates of state employees are not highly offensive, and their disclosure does not violate Article I, section 7 of the state constitution.
A denial of a temporary compensation claim that is not pursued will not necessarily prohibit a later claim for permanent compensation if the first claim was for a significantly lower amount than the latter claim. The disparity in the amount of the compensation in the two claims can create an injustice that may overcome application of collateral estoppel and res judicata.
Note: Collateral estoppel provides that issues litigated by parties that results in a binding determination of the issues cannot be relitigated by the same parties in a future legal proceeding. Res judicata provides that a matter finally decided on its merits by a court of competent jurisdiction cannot later be subject to litigation again between the same parties.
Weaver v. City of Everett (10/17/2019) – Weaver, a firefighter, discovered a malignant melanoma on his shoulder. He had it removed and that caused him to miss work. Weaver filed a claim for temporary compensation for the missed work, seeking $10,000; the claim was denied as not being for an “occupational disease.” Although Weaver initially appealed, his appeal was not pursued and was eventually dismissed. Later, Weaver discovered that the cancer from his shoulder had spread to his brain. Although the brain tumor was removed, the prognosis was poor, and Weaver was never able to return to work. Weaver filed for permanent compensation, seeking an estimated $2 million. This claim was denied as being barred by collateral estoppel and res judicata, relating back to the denial of his initial claim for temporary compensation. An appeal to superior court affirmed the trial court decision. Weaver appealed to the court of appeals and that court reversed, finding that collateral estoppel and res judicata did not apply. On appeal to the Supreme Court, the Court affirmed.
The Supreme Court held that collateral estoppel did not apply because the doctrine would work an injustice. Weaver did not have a sufficient incentive to fully and vigorously litigate the temporary disability claim. Res judicata did not apply because the two claims did not share identical subject matter, the permanent disability claim did not exist at the time of the temporary disability claim. The statutory presumption of occupational disease in firefighters demonstrates an unequivocal public policy that a melanoma is presumed to arise naturally and proximately out of employment. Since the permanent disability claim was not available at the time of the temporary disability claim, the subject matter of the two claims were not the same; lacking identity of subject matter precludes application of res judicata. Citing an earlier decision, the Court noted “res judicata ... is not to be applied so rigidly as to defeat the ends of justice, or to work an injustice."
Public Records Act
Exemptions are applied at the time a public records request is made. If records are provided in installments, there is no requirement for the agency to provide records exempted at the time of the initial request even though they are no longer exempt at the time an installment is later provided.
Gipson v. Snohomish County (10/10/2019) – Gipson was subject to a work-related investigation. He requested all records in which his name was referenced. Some of the records involved an on-going discrimination investigation. Due to the number of records requested, the county supplied records to Gibson in installments. Some records were redacted and those related to the on-going investigation were noted as being exempt. Prior to the county providing the final installment of records, the investigation had been completed. As Gibson had not been given the investigation records, he filed suit, arguing that once the investigation was complete, the county was obligated to supply the previously exempt records. The superior court and court of appeals ruled in favor of the county, and Gibson appealed.
The Supreme Court affirmed the decision of the lower courts. The determination whether a record is exempt or not is made at the time of the record’s request. Where records are provided in installments, the county is not obligated to supply previously exempted records in a future installment even though the exemption no longer applies. There is no continuing obligation to furnish records once the exemption ends; if the requestor wishes the record, he or she should make a “refresher request.” The Court held:
An agency is not required to maintain constant vigilance of any exemptions it asserts when the request is first received, regardless of whether the records request requires a single installment or multiple installments to satisfactorily fulfill.
Public Records Act
As to the penalty assessed by the trial court for noncompliance with Public Record Act’s requirements, the Supreme Court’s task is to determine whether the trial court abused its discretion in assessing the penalty.
Hoffman v. Kittitas County, 194 Wn.2d 217 (9/26/2019) – Hoffman made a public records request for police reports, photos, and videos related to a named individual. The records officer found seven reports but no photos or videos. In fact, there were 97 photos and two videos. The records officer called Hoffman, asking for clarification; she was concerned that Hoffman had no connection to the reports. Hoffman agreed to accept the police report "face sheets." The records officer provided those records (but no photos or videos) and an exemption log that incorrectly referenced exemption statutes. The records officer retired, and her successor reviewed Hoffman’s request and concluded that it may have been mishandled. Hoffman was again contacted, and he confirmed that he had received what was needed. Nevertheless, he wondered about other records that might apply. After indicating he could sue, Hoffman resubmitted the original request and the county supplied responsive records, including the photos and videos that previously were not provided. Hoffman did sue and the trial court, using conceded and stipulated facts, found that the county had violated the Public Records Act. The court considered aggravating and mitigating factors, and concluded that the county acted negligently but not in bad faith, and awarded a penalty of $15,498. Hoffman appealed, arguing that the court had improperly found that there was no bad faith and, because of that, the award of damages was too small. The court of appeals affirmed and upheld the penalty. Hoffman appealed to the Supreme Court.
The Supreme Court held that its task was to review the overall penalty under an abuse of discretion standard. The Court found no abuse of discretion. The PRA statute gives a court great discretion in determining the appropriate penalty to assess. The court’s review is limited to determining whether there has been an abuse of discretion. In making this determination, the court reviews aggravating and mitigating factors. The factors only provide guidance, they may not apply equally or at all in every case, and they are not an exclusive list of appropriate considerations. No one factor should control. The Supreme Court will not consider the lower court’s decision regarding whether there was bad faith since that would interfere with its review of whether there has been an abuse of discretion. The Supreme Court’s role is to review the trial court’s overall penalty assessment for abuse of discretion. Reviewing the various factors considered by the trial court in determining the penalty, the Court found there was no abuse of discretion. Mitigating factors were the county’s proper response and follow-up, its proper training and follow up, and the existence of a system to track and retrieve records. Aggravating factors were the lack of strict compliance, unreasonableness of the explanation for its noncompliance, and the county’s negligent noncompliance. Considering the factors, the Court found that the penalty was reasonable and not an abuse of discretion.
Land Use / Damages
If property rights are damaged by governmental action, monetary damages may be sought, if the actions were arbitrary, capricious, unlawful, or exceeded lawful authority, and that determination can be made by objective standards, not subjective ones.
Church of the Divine Earth v. Tacoma, 192 Wn.2d 132 (9/19/2019) – The church wanted to build a parsonage on church-owned land. The city required various conditions be met, including a requirement dedication of a 30-foot easement to broaden a street serving the parsonage. Most of the streets in the area were 60-feet in width, and the city sought uniformity. While most of the city’s conditions were dropped, the city’s requirement for an easement remained. The church appealed to the hearing examiner and the hearing examiner ruled in the city’s favor, citing the need for street uniformity. The church appealed and requested damages under RCW 64.40.020(1). On the appeal, the trial court reversed the hearing examiner’s decision and, as to damages, made an evidentiary ruling that other factors (other than uniformity) which would support the need for an easement could not be considered. However, the court allowed testimony regarding other factors, such as safety and parking. The court denied damages, as it concluded the city reasonably believed the easement had nexus to the project, was reasonable, and that the city “did not know and should have not reasonably known that its requirement for an easement dedication was violative of Nollan/Dolan. The court of appeals affirmed, and the church appealed.
On appeal, the Supreme Court reversed. The only issue was whether damages should have been awarded. The appeal stemmed from the hearing examiner’s decision whether the city should have known that its actions were unlawful. The city would have to show the dedication solved a public problem and that the condition was roughly proportional to the development’s impact. The city provided little evidence justifying the dedication requirement and rested the requirement on the need for street uniformity. The city should have known the need for uniformity did not justify the required dedication. The other factors, which were not to be considered by the court but nevertheless were, should not have been considered. Because the findings were based on evidence not considered by the hearing examiner, they lack the necessary support and cannot justify the court's conclusions of law. The court of appeals had applied the wrong standard. It considered whether the city had reasonably believed the dedication requirement was lawful; it should have determined whether the city’s final decision should reasonably have been known to be unlawful. But whether the city believed in the lawfulness of its actions is a subjective question and conflicts with the statutory standard of RCW 64.40.020 which requires an objective standard. The city's final decision "should reasonably have been known to have been unlawful." Thus, damages are not available if reasonable minds, with the necessary knowledge and expertise, could have concluded that the city's decision was lawful. The city's subjective belief that the dedication was lawful does not determine what it objectively should reasonably have known. The case was remanded for a new trial.
Public Records Act
Initial public records response (five-day letter) stating that the agency would respond further within 45 business days did not comply with the Public Records Act.
Health Pros Northwest, Inc. v. State (9/17/2019) – The requestor submitted a public records request to the State Department of Corrections (DoC). DoC provided a timely initial five-day letter that stated it “will respond further as to the status of your request within 45 business days, on or before April 20, 2017.” The requestor asked how many installments there would be and when they would be produced, and DoC replied that there would be “easily over 10 installments” but declined to provide a specific number of installments or dates by which they would be available. It also declined to provide a date by which responses to the request would be completed.
When DoC produced the first installment (within the 45-business day period indicated in the five-day letter), it stated that the next installment would be provided “within 40 business days, on or before June 12, 2017.” The requestor brought suit, claiming that DoC violated RCW 42.56.520 by (1) failing to provide information required in the initial five-day letter, and (2) failing to provide a reasonable estimate of a date by which it would fully respond to the request.
The court ruled that DoC’s initial five-day response letter violated the Public Records Act (PRA) because it did not provide a reasonable estimate of when it would provide the first installment of responsive records. An agency must do more than say it will respond further within a certain period of time. If it plans to respond in installments, it must provide a date by which the first installment will be provided.
However, the court ruled that RCW 42.56.520 does not require an agency to provide a reasonable estimate of the date by which it will complete its response to the request in its five-day letter—only the first installment date. RCW 42.56.550(2) requires agencies to make reasonable estimates of the time required to respond to a request, but it applies on an installment by installment basis and does not require that a completion date be provided.
Recall of Officials
Town’s purchase of property for a municipal purpose at a price that exceeded the property’s appraised value did not constitute legal sufficiency to support recall of an official.
In re Recall of Burnham, 194 Wn.2d 68 (9/12/2019) – A town’s mayor, supported by a majority vote of the town council, agreed to purchase real property from a former councilmember for an amount that exceeded the appraised value of the property (Appraised at $40,000, purchased for $68,000). A recall petition was filed alleging that the mayor and three councilmembers violated the constitution (gifts prohibited) when the purchase was approved at a price above the appraised. The superior court found the allegation to be legally insufficient, and the supreme court agreed.
“An elected official cannot be recalled for appropriately exercising the discretion granted him or her by law." Discretionary acts are legally sufficient to support recall only if an elected official exercises discretion in a "manifestly unreasonable" manner. Here, the court found that there was no gift since the property was purchased to create a “pocket park,” a fundamental municipal purpose. There was no intent to make a gift. The purchase was a discretionary act and can be overturned only if the purchase was manifestly unreasonable. The purchase price was not manifestly unreasonable.
Recall was also sought against the mayor because he parked business vehicles on city property. This allegation was also found insufficient since the property had been used for the parking of other vehicles. And others were not excluded from the use of the property.
Public Records Act
The "Scope of Employment" test for public records does not apply to agency systems and devices, but not all records on an agency server are public records just because they are on an agency’s server.
Service Employees International Union (SEIU) v. University of Washington, 193 Wn.2d 777 (9/5/2019) – The Freedom Foundation sought records relating to union organizing of faculty members of the University of Washington. The records included emails relating to union organizing, as well as emails unrelated to university business. After a search, the university found numerous records and concluded that some were responsive to the request and not exempt from disclosure. It notified the involved union (SEIU) of its intent to release other records, allowing the union an opportunity to seek an injunction against the release of the records. The union did seek an injunction.
The trial court issued a temporary injunction after applying the “scope of employment” test (a communication on a private device of an employee may be subject to disclosure only if the job requires the communication, the employer directs it, or it furthers the employer’s interest). The court concluded that, regardless of where a particular record is created or stored, "whether an agency employee's record is subject to disclosure hinges on whether the record was prepared, used, or retained within the scope of employment.” A second preliminary injunction was later issued, followed by a permanent injunction. The Freedom Foundation appealed, arguing that the "scope of employment" test applies only to records created or stored on an employee's personal device and should not be extended to records on public agencies' e-mail servers. The court of appeals affirmed, and the case was then appealed to the supreme court. The supreme court reversed.
To qualify as a “public record,” a record must satisfy three prongs: be a writing, contain information relating to the conduct of government or any proprietary function, and be prepared, owned, used or retained by a government agency. The court held that the “scope of employment” test, which had been used by the trial court, applies only to writings on personal devices. That test helps determine whether a record has been "prepared, owned, used, or retained" by an agency, the third prong used to determine if a writing is a public record. This case, however, involves the second prong, did the records stored on the university’s servers contain information “relating to the conduct of government or the performance of any governmental or proprietary function”? The trial court erred by using the scope of employment test.
Not all records on an agency server are public records just because they are on an agency’s server. “Mere retention on an agency server is not enough to bring an e-mail within the scope of the PRA.” Some of the records in question, such as those involving faculty organizing and the treatment of students and staff, did relate to government conduct and to the performance of a governmental function. They were not personal and would be subject to disclosure
The union, however, had also made statutory and constitutional arguments as to why the records should not be released. However, those arguments were not addressed by the trial court. Accordingly, the case was remanded back to the superior court for further review of the union’s other arguments.
Appointment of Special Deputy Prosecutor Attorney
If county prosecuting attorney has no duty to initiate a lawsuit on behalf of a county official, appointment of a special deputy prosecuting attorney cannot be sustained.
In the Matter of the Appointment of Special Deputy Prosecuting Attorney, 193 Wn.2d 777 (8/8/2019) – The Franklin County clerk and judges disagreed on whether certain records could be solely prepared and maintained electronically or if paper copies should also be prepared and maintained. The judges wanted the paper copies, and the clerk refused, claiming that she did not have the budget to prepare duplicate records. The judges adopted a local court rules requiring the preparation of the records in paper form. The clerk refused to prepare the paper copies, the judges threatened a lawsuit, and the prosecuting attorney appointed special counsel to represent the clerk. Although the prosecutor could have provided legal advice to the judges, he appointed special counsel for the judges too, expecting that the matter could be resolved without a lawsuit. The judge’s special counsel, however, filed a lawsuit against the clerk. The prosecutor then ordered the clerk’s special counsel to halt work on the lawsuit and sought to stop the lawsuit. The clerk’s special council sought money from the commissioners so the lawsuit could proceed; the commissioners declined the request. The prosecutor then revoked the clerk’s special council’s appointment. The judges signed a letter of appointment for an attorney; the document was approved in chambers without notice or the opportunity to be heard. The prosecutor and the county sought review of the court’s letter of appointment from the State Supreme Court.
Before a special prosecutor can be appointed, the prosecutor must have the duty to represent that party in the given matter and there must be some disability preventing the prosecutor from fulfilling that duty. The prosecutor, however, does not have the duty to bring a civil lawsuit; the authority is discretionary. And without a duty, a special prosecutor cannot be appointed. However, the judges could pursue a lawsuit, just not at public expense. The Court also faulted the order of appointment since it was approved in private, without notice and an opportunity to be heard. The clerk’s attorney argued that once a special deputy was appointed, that deputy could not be terminated. The Court disagreed; the prosecutor could revoke the appointment at his pleasure. The Court vacated the order of appointment.
Public Records Act
State law does not establish the factors to consider in determining a reasonable time for providing records. Providing records to the requesting party can be delayed allowing an affected party to determine whether to seek an injunction against the records release.
Freedom Foundation v. DSHS, 9 Wn. App. 694 (8/6/2019) – The Freedom Foundation (Foundation) requested certain records from the state Department of Social and Health Services (DSHS). DSHS submitted a schedule to the Foundation for providing the records. DSHS then gave third-party notice of Foundation’s request to several parties, including the Training Partnership (Partnership), which was an affected party in the requested records. Thereafter the Partnership made its own request for the same records the Foundation had requested. DSHS provided the Partnership notice that the records would be provided in installments by certain designated dates. DSHS provided the records to the Partnership before providing them to the Foundation and advised the Partnership it would need to seek an injunction by a specified date, if it chose to challenge the release of the records to the Foundation. The Foundation sued on several grounds, claiming DSHS’s conduct violated the PRA. The trial court dismissed the lawsuit.
On appeal, the court held that DSHS’s timeline (30 days) for providing the records was reasonable. Washington case law does not address the factors to consider in determining if an agency’s estimate of the additional time needed is reasonable. The court determined DSHS’s estimate was reasonable. The Foundation challenged DSHS’s action of producing the records first to the Partnership before it responded to the Foundation’s records request. The court found that DSHS did not unlawfully distinguish between the Foundation and the Partnership since the PRA allows an agency to delay production of records so a party affected by the request can obtain a court order to enjoin the release of the records. Third party notice to the Partnership, which was an affected party, allowed the Partnership the opportunity to review the records to determine whether it should seek an injunction.
The Growth Management Act does not impose a duty on local governments to consider the public health and safety when developing regulations to protect critical areas.
Futurewise v. Snohomish County, 9 Wn. App. 2d 391 (7/15/2019) – Following the Oso landslide, the county updated its regulations designating and protecting critical areas, including geologically hazardous areas. Futurewise appealed to the Growth Management Hearings Board, arguing that the county’s regulations failed to adequately protect the public health and safety from geologically hazardous areas as required by the Growth Management Act. The Hearings Board concluded that the regulations met a majority of the Growth Management requirements. Futurewise appealed and the court of appeals affirmed finding that the Growth Management Act does not require the county to consider public health and safety when developing critical area regulations.
Local government must adopt regulations to protect critical areas. They must use best available science in developing their regulations. But there is no requirement that they consider public health and safety when developing critical area regulations. The statutes require the protection of critical areas and not anything external to the critical areas, such as public health and safety.
A graduated tax on income is a tax on property; taxes on property must be uniform; a graduated income tax is not uniform and thus a city lacks constitutional authority to impose such a tax.
Kunath v. City of Seattle, ___ Wn. App. 2d ___ (7/15/2019) – Seattle adopted an income-tax on high-income residents. The tax rate was 2.5% of total income above a certain level. Lawsuits were filed to stop the implementation of the tax. Superior court issued a summary judgment in favor of the tax opponents, finding that Seattle lacked authority to impose an income tax and, even with such authority, the tax could not be on net income. Seattle appealed.
Article VII, section 1 of the state constitution requires “[a]lI taxes shall be uniform upon the same class of property.” The Supreme Court has held that ‘income’ is property and a tax upon income is a tax upon property. Under RCW 35.22.280(2) Seattle arguably has authority to impose the tax; however, the constitution prohibits it from doing so. RCW 36.65.030 prohibits a city from levying a tax on net income, but this statute has been found invalid. Seattle argues that its tax is on total income. A court looks at the incidents of a tax, not its name. Seattle’s tax is on income; the tax is measured by total income. Because Seattle’s income tax measures a city resident’s taxable income based on the sum of net calculations, it is a net income tax. Although the prohibition set out in RCW 36.65.030 has been found invalid, that does not provide Seattle with authority to impose the tax since its tax on property is unconstitutional under Article VII, section 1 because it is not levied uniformly.
Vouchers paid for by city funds and provided to registered voters and qualified residents, then given by the registered voters and qualified residents to persons seeking elective office, do not violate the First Amendment and are constitutional.
Elster v. City of Seattle, 193 Wn.2d 638 (7/11/2019) – Seattle voters approved a "Democracy Voucher Program" to increase civic engagement. Vouchers paid for by city funds were given to city registered voters and qualified residents who then could give them to qualified persons seeking elective city office. Elster sued, arguing that the taxes funding the program burdened First Amendment rights and unconstitutionally compelled speech. The superior court dismissed the suit, Elster appealed and the Supreme Court affirmed, finding that the program was not unconstitutional.
Elster argued that the vouchers were not viewpoint neutral and would be distributed to qualified candidates unevenly according to majoritarian preferences. The court concluded the recipients of the vouchers were not dictated by the city but rather by the individual residents. That some candidates would receive more vouchers than others reflects the wishes of the majority and did not amount to an attempt by the city to subvert minority views. The taxes funding the program do not “alter, abridge, restrict, censor or burden speech.” The vouchers enlarge “public discussion and participation in the electoral process." It is content neutral. Elster argued that the program was unconstitutional because he disagreed with the program's message. But the court noted that the tax funding the program did not individually associate the plaintiffs with any message conveyed by the Democracy Voucher Program. The city has a legitimate interest in its public financing of elections and this tax directly supports this interest.
Land Use Petition Act (LUPA) / Acceptance of Service
Parties to a LUPA challenge who have identical interests and have agreed to acceptance of service by email may accept service by email.
RST Partnership v. Chelan County, 9 Wn. App. 2d 169 (6/13/2019) – RST leased property to NSJB Enterprises and NSJB used the property for the growing and processing of marijuana. The county sent notice indicating that the use was contrary to the county’s zoning and building codes. The two parties jointly appealed the county’s order to abate to the hearing examiner. The hearing examiner affirmed the county’s action. RST and NSJB both filed land use petitions challenging the hearing examiner’s decision. The two petitions were similar and the counsels to the two parties coordinated their efforts. Both parties agreed to electronic service and each sent the other a copy of their client’s petition by email.
The county sought dismissal of the petitions arguing, among other things, that the parties failed to properly serve each other within 21 days when they made service by email on respective counsel. The trial court agreed with the county and dismissed but, on appeal the court reversed. The parties may agree to accept service on each other’s attorneys by email.
Charge of assault and battery against a city for the actions of a police officer do not preclude a charge of negligence.
Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537 (6/13/2019) – Beltran-Serrano was found standing on a street and, as an officer approached, he laid on his stomach and began digging a hole. Beltran-Serrano suffers from a mental illness and is non-English speaking. The officer made comments, but they were not understood. Beltran-Serrano became scared and ran from the officer. When a stun gun failed, he kept running and was then shot. A representative filed a lawsuit on Beltran-Serrano’s behalf, alleging both the intentional act of assault and battery and negligence against the city. On the city’s motion, the court dismissed the negligence action and found that the intentional tort of assault and battery was the only way the lawsuit could continue. A majority of the Supreme Court reversed.
The fact that the officer’s conduct may constitute assault and battery does not preclude the ability to bring a negligence claim. Beltran-Serrano can argue that the officer failed to use ordinary care when she failed to stop the escalation of the situation, ultimately resulting in the use of deadly force. The plaintiff can argue negligence in that that the officer’s actions did not meet accepted practices and that resulted in the plaintiff being shot and injured. The court rejected the argument that the public duty doctrine applied since, under common law negligence, the duty was owed to Beltran-Serrano, not to the public as a whole.
Fair Campaign Practices / Expenditure in Opposition to Ballot Measure
Port’s board’s action to file suit to keep initiative off ballot was “in opposition to” ballot measure and should have been reported; board’s action also involved illegal expenditures of public funds contrary to RCW 42.17A.555.
State of Washington v. Economic Development Board of Tacoma, 9 Wn. App. 2d 1 (5/21/2019) – The State brought an action against an economic development board, a chamber of commerce and the Port of Tacoma (the defendants) alleging that they failed to report independent expenditures as required by the Fair Campaign Practices Act (FCPA) and that the port had improperly used public funds to oppose a ballot proposition. The trial court ruled in the defendants’ favor and dismissed; the state appealed. On appeal, the court reversed.
The lawsuit stems from a proposed initiative which would have, had it been passed, required a public vote on any land use proposal that involved a daily consumption of at least one million gallons of water. The defendants filed a declaratory action against the initiative to prevent it from being placed on the ballot.
The State alleged that the defendants failed to report their “independent expenditures” made in opposition to the initiative as required by the FCPA. Also, the State alleged that the port had used public facilities to oppose the ballot issue, prohibited by RCW 42.17A.555.
The court concluded that use of legal services to challenge the initiative were independent expenditures that should have been reported. Any expenditure includes litigation services incurred before the election. The expenditures here were “in opposition to” the initiative as they were designed to keep the initiative off the ballot. The court further concluded that the reporting requirements were constitutional, neither in violation of the First Amendment nor vague. The court held that the port’s expenditures to file suit against the initiative were expenditures contrary to RCW 42.17A.555 and, as they were not expressly authorized by statute nor necessarily implied, they could not be normal and regular conduct of the port.
If juvenile felony conviction is sealed, the underlying offense is not expunged and can be used to deny a concealed pistol permit pursuant to federal law.
Barr v. Snohomish County Sheriff, 4 Wn.2d 85 (5/9/2019) – As a juvenile, Barr was adjudicated of two Class A felonies. Twenty-five years later Barr sought and obtained a court order sealing his juvenile record. Additionally, the court instructed that Barr entered an order indicating that Barr qualified for restoration of his firearm rights. Thereafter, he applied for a concealed pistol permit (CPL) and his application was denied because of the juvenile court record. Barr sought a writ of mandamus from the court, asking that the sheriff be required to issue a CPL. The superior court denied the request and Barr appealed. On appeal, the court of appeals reversed. And on appeal to the Supreme Court, the decision was reversed; Barr is not entitled to obtain a concealed weapon, as that is prohibited under federal law.
Although the sealing of a juvenile record removes it from view for some state purposes, it does not expunge it for determining under federal law (18 U.S.C. § 922(g)) whether there has been a conviction. The conviction remains a conviction under the federal law and, since federal law prohibits a person convicted of a crime with a jail penalty of over one year from possessing a firearm, the sheriff was correct in his refusal to issue the concealed weapons permit.
The Growth Management Act (GMA) does not require the state Liquor and Cannabis Board to defer to local zoning when making licensing decisions.
In re Petition of Kittitas County for a Declaratory Order, 8 Wn. App. 2d 585 (4/11/2019) – Kittitas County notified the Liquor and Cannabis Board (“Board”) of its objection to the licensing of a marijuana producer/processor based upon the county’s zoning provisions for marijuana production and processing. Nevertheless, indicating that it could not deny a license based upon local zoning laws, the Board issued a license for the location set out in the application. The county petitioned the Board for a declaratory order. Although there was significant support from other governments for the county’s position, the Board concluded that neither the marijuana licensing statute nor the GMA required adherence by the Board to all local zoning laws and land use ordinances prior to granting a license. The county appealed the Board’s decision to Superior Court, and the Court reversed, concluding that the Board can only approve those licenses which are in compliance with local zoning. The Board appealed.
The county argued that under the Growth Management Act, state agencies must comply with local comprehensive plans and development regulations. The Board argued that the GMA provision only applied to state actions when the state acts in a proprietary capacity or for the development or operation of a public facility site. The Court agreed with the Board; the GMA statute applies to the siting of government facilities. However, even with a license, the licensee must still adhere to local laws, including zoning laws, before starting business. A marijuana license does not authorize the actual siting of the business. The licensing statutes merely require communications with local governments, not compliance with local zoning laws. The Board’s licensing decisions are independent from local zoning laws.
State Environmental Policy Act (SEPA)
A city that has authority over (parts) of a proposal is an agency with jurisdiction for purposes of SEPA and, if an MDNS is issued, it may assume lead agency status.
Puyallup v. Pierce County, 8 Wn. App. 2d 323 (4/3/2019) – A developer sought to construct a warehouse, distribution and freight center in an area adjacent to the City of Puyallup (“City”) and within the city’s Urban Growth Area. The project would be served by city sewer and partially by city water. Due to the increased traffic the project would create, street improvements would be required to the city’s street system. The county, after SEPA review, issued an MDNS requiring, among other things, that street improvements be made to city streets. Thereafter, the City issued a “Notice of Assumption of Lead Agency Status” and made a Determination of Significance (DS) for the project. The county objected, stating it would not recognize the City’s action. A lawsuit was brought, and the trial court found in the county’s favor. The City appealed.
On appeal, the court of appeals reversed. The City can become an “agency with jurisdiction” if it can show that “it has authority to approve, veto, or finance parts of the proposal.” The City argued that, since it had authority over the required street improvements and must approve the sewer and water connections and service, it was an agency with jurisdiction. The county and developer disagreed, arguing that required work in the City was not part of the proposal and the City did not qualify as its role was that of a service provider. The court concluded that the City, based upon the plain meaning of WAC 197-11-948, was an agency with jurisdiction due to its responsibilities over the street improvements and provision of sewer and water. An agency with jurisdiction may assume lead agency status if a DNS is issued. Although the county disagreed, the court concluded that an MDNS is a type of DNS, thus allowing the City to assume lead agency status
Responsibility for Medical Costs of Inmates
A county may not seek reimbursement from a city for the medical costs of a person arrested by city police and jailed for a felony.
Thurston County v. City of Olympia, 193 Wn.2d 102 (3/14/2019) – Persons were arrested on felony charges by city police officers and jailed in a county jail. The arrestees required medical services while in jail and the county sought reimbursement from the city for the medical costs. There was no interlocal agreement in place between the city and county. The city refused to pay, and the county sought a declaratory judgment on the issue. A visiting judge concluded that the city was not required to make a reimbursement and the county appealed. The Supreme Court affirmed the trial court decision. The responsibility for payment is associated with what jurisdiction brings the charge; while city officers may be able to arrest a person for a felony, the felony charge itself can only be brought by the county. After review of the relevant statutory history, the court held:
[W]e conclude that the County is not entitled to seek reimbursement from the Cities for the cost of medical services provided to inmates the County holds in its own jail on felony charges brought by its own prosecutors, regardless of who made the arrest.
Tortious Interference with Business Expectancy
City’s denial of a license for a marijuana business, based upon business’s proximity to another similar business, contrary to a city regulation requiring 1,000-foot separation, may support a claim of tortious interference with a business expectancy.
Greensun Group v. City of Bellevue. 7 Wn. App. 2d 754 (3/4/2019) – Greensun sought to open a recreational marijuana retail store in Bellevue. It leased and obtained a building permit to remodel an existing building. However, the city would not issue a business license because the building Greensun had leased was too close to another retail marijuana store, and this violated a city regulation requiring at least 1,000 feet between retail marijuana businesses. There was a controversy as to which retail business was disqualified due to proximity; for making this determination, the city at first considered a first-in-time standard based upon when a building permit application was made. However, this rule was changed, and the city then looked to which business was first issued a license by the Liquor and Cannabis Board. Unfortunately, the Board had issued its licenses in batches, and it had no way to determine which license was issued to which business first. The city sought information as to who was first from the two applicants in question. Ultimately, a license was issued to Greensun’s competitor. Greensun sued, alleging among other things that the city had engaged in tortious interference with a business expectancy. The trial court dismissed Greensun’s claim on summary judgment, and Greensun appealed.
The elements for tortious interference are: (1) the existence of a [valid] business expectancy; (2) that [the defendant] had knowledge of that [expectancy]; (3) an intentional interference inducing or causing . . . termination of the. . . expectancy; (4) that [the defendant] interfered for an improper purpose or used improper means; and (5) resultant damage." If those elements are established, the defendant can demonstrate a privilege that protects its action. After an extensive review of the facts, the court concluded that there were genuine issues of fact within the five elements, and the case was returned to the superior court for trial.
Payment of $10 per day of jury service does not violate either the state’s Minimum Wage Act nor does it create a disparate impact based on economic status.
Rocha v. King County, 7 Wn. App. 2d 647 (2/21/2019) – Persons summoned for jury service in King County are paid $10 per day for their service, as well as a reimbursement for mileage or travel expenses. Some of those summoned, however, due to economic hardship request and are granted a waiver from jury service. Several jurors filed a complaint against the county, arguing that jury pay disparately excluded jurors from service based on economic status and that jurors were entitled to be paid minimum wage for their service. The county and the superior court disagreed. On appeal, the court of appeals affirmed the trial court.
The Minimum Wage Act applies to employees. Jurors serve as part of a civic duty and are only entitled to payment for services as provided by statute. Economic status is not protected under the Washington Law Against Discrimination. Although a disparate impact claim may be brought under the 14th Amendment, the appellants did not plead or argue such a claim. The appellants also did not bring a claim under the juror pay statute. Disparate impact claims may be brought under the equal protection clauses of the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution. The appellants, however, did not plead or argue a disparate impact claim under the equal protection clause in the superior court or on appeal. Their claim was not under the juror pay statute but was instead apparently “rooted in the no juror exclusion statute.” But that statute’s legislature’s intent is to minimize the burden of jury service, without reference to financial considerations. The legislature’s intent was to ensure that residents have the opportunity to be considered for jury service and the obligation to serve when summoned for jury service. No cause of action can be implied from the legislative intent.
Power of initiative
An initiative proposal that would authorize city employees to question individuals as to their immigration status, without restriction, is administrative in nature and thus, not subject to initiative.
Global Neighborhood v. Respect Washington, 7 Wn. App. 2d 647 (1/29/2019) – A Spokane ordinance delegates authority to the police chief to make rules and issue orders for the proper functioning of the police department. Presumably, in response to a state law requiring that law enforcement agencies address racial profiling, the Spokane police department adopted policies limiting officers from inquiring about a person’s immigration, with certain exceptions, and then sharing such information with others. Later the city council adopted policies consistent with those adopted by the police. Thereafter, Respect Washington filed a proposed initiative with the city that would, if adopted, remove the limitation on collecting and sharing immigration status information. Global Neighborhood and other similar organizations filed suit, seeking removal of the initiative from the ballot. The trial court enjoined placement of the initiative on the ballot.
Although many issues were raised on appeal (laches, the statute of limitations, lack of harm for purposes of an injunction, violation of Respect Washington’s First Amendment rights and mootness), the court’s decision was based upon whether the proposed initiative was directed toward administrative or legislative matters. The court concluded the initiative involved an administrative matter and was not subjective to an initiative. The following reflects the court’s reasoning for its decision, “Because the proposed initiative arises from an administrative framework, because the initiative entails directions to city employees, because the initiative meddles in the administration of the city’s police force and may interfere in effective law enforcement, and because the initiative runs contrary to state, if not, federal law,” the initiative is administrative in nature and thus, not subject to initiative.
Public Records Act
Requestor need not begin litigation to obtain attorney fees and costs for unreasonable delay in the production of records.
Asotin County v. Eggleston, 7 Wn. App. 2d 143 (1/17/2019) – Eggleston made a public records request for copies of the attorney invoices related to the county’s defense of two lawsuits he had brought against the county. Although the county initially attempted to exempt the invoices in their entirety, it later sought assistance from the court to determine what information could be redacted. Eggleston objected, indicating that the county should not provide unredacted documents to the court for review and assistance in determining what could be redacted before providing proposed redactions. Ultimately the county provided proposed redactions to the court, which the court approved, concluding they were narrowly tailored to avoid improper disclosure. Eggleston asked the court for costs, fees and penalties for the delay in receiving the redacted records. The court denied Eggleston’s request and Eggleston appealed.
The court of appeals concluded that costs and fees can be awarded when the requirements of the Public Records Act are not followed; it is not required that a person bring a lawsuit to obtain the records to be a prevailing party. The court also found that Eggleston was the prevailing party on the issue of whether the records were entirely exempt, as the county had initially maintained, since it is clear that RCW 42.56.904 does not allow attorney invoices to be withheld in their entirety.
Pro-bono legal services provided in an effort to get issues on local ballot must be reported under the state Fair Campaign Practices Act, Ch. 42.17A RCW.
State v. Evergreen Freedom Foundation, 192 Wn.2d 782 (1/10/2019) – The Evergreen Freedom Foundation (“Evergreen”) sought to have cities place two initiative issues on their local ballots. When the cities failed to either adopt the proposed legislation or place them on the ballot, some local proponents of the issues submitted by Evergreen sued, with the lawsuits aided by attorneys employed by Evergreen. Evergreen did not file financial disclosure forms reporting the value of the legal services that were provided. Following a citizen complaint, an investigation was conducted and an enforcement action was begun alleging that Evergreen failed to report the expenditures it made in support of local ballot propositions. Evergreen moved to dismiss the enforcement action and the superior court granted the dismissal. The state appealed, and the court of appeals reversed. On further appeal, the Supreme Court affirmed, holding that pro-bono legal services, which Evergreen Freedom Foundation provided to initiative proponents, were reportable to the Public Disclosure Commission.
The Court found that the state disclosure statute, presumed to be constitutional, was not vague. The materials submitted by Evergreen became a “ballot proposition” when they were filed with the cities. The disclosure laws did not violate the First Amendment. While the disclosure requirements may add a burden, they do not prevent anyone from speaking. The disclosure requirements provide information to the public and advance the democratic objectives underlying the First Amendment. The state has an important governmental interest in informing the public about the influence and money behind ballot measures. The value of the pro-bono legal assistance should have been reported.
County, for various reasons including statutory immunity, cleared of liability arising from Oso landslide.
Regelbrugge v. Snohomish County, 7 Wn. App. 2d 29 (12/31/2018) – A landslide occurred in Snohomish County in 2014 in an area that had previously experienced landslides. The Oso landslide resulted in the death of 43 people, injuries to others and the destruction of property in its path. The area near the landslide had previously been studied, public meetings held to discuss the dangers, and steps taken to either help reduce the possibility of future landslides or their destructiveness and address other issues. Lawsuits were filed against the county, the state and a timber company that had logged in the area. While the trial court dismissed most suits against the county, it provided for an immediate appeal. The court of appeals affirmed the trial court.
The county had adopted a flood control plan for the area. The plaintiffs argued that the adoption required the county to warn the community of the dangers they faced. The flood control plan by reason of RCW 86.12.037, the county argued, shielded the county from any action associated with flood protection and river navigation purposes under the plan. The plaintiffs argued that immunity was available only for acts related exclusively to flood control, not for losses associated with landslides. The court disagreed; the statute had no such limitation.
The county’s actions involved in the construction of a cribwall built for fish enhancement were also immune. A county is not liable for adverse impacts resulting from fish enhancement projects, such as a cribwall.See RCW 36.70.982. Immunity is available if the project meets criteria set out at RCW 77.55.181 and does not create potential threats to public health and safety. The project was determined not to be threatening to public health and safety. Immunity was not lost just because the permit for the cribwall also addressed landslide remediation. The court dismissed a claim that the county was subject to strict liability under riparian law due to the removal of trees; the county was not shown to have knowledge that the removal of trees created a hazardous situation.
The plaintiffs argued that the county had a duty to warn residents of future landslide dangers at a community meeting. They failed to demonstrate that the county failed to act with reasonable care. The county did not lull residents into believing they were safe and there was no need to act. The court also rejected claims under the rescue doctrine and the affirmative undertaking doctrine.
Elections / Challenge of Ballot Title
Challenge to voter-approved legislation, years after ballot title was prepared and issue approved by the voters, was untimely.
End Prison Industrial Complex (EPIC) v. King County, 192 Wn.2d 560 (12/27/2018) – King County sought a levy lid lift to fund the replacement of a family and juvenile justice center. Nine years after the election, a challenge was brought, arguing that the ballot title that had been prepared failed to include information then required by state statute. The county prevailed at the trial level, the court of appeals reversed and on appeal to the Supreme Court, the Court reversed. By statute, a challenge to a ballot title must be brought within ten days; this challenge was brought years later. The Court found that the information in the body of the ballot supplied information that would appropriately notify voters of the proposal. Regardless, the lateness of the challenge was untimely and precluded the challenge.
Personnel / Discrimination
An employee with a disabling condition who has been given work accommodations must notify city of change in condition, if further accommodation is required.
Gamble v. City of Seattle, 6 Wn. App. 2d 883 (12/24/2018) – Gamble suffered a back injury and was provided with various accommodations allowing her to continue to work. Due to work changes, she was assigned to additional work locations where some of accommodations previously given were not present. Gamble did not discuss her new requirements with the city or, when she did, her comments suggested some previous accommodations were not needed. She sued, lost in trial court and appealed. The court affirmed. To prevail on failure to accommodate, a person must notify the employer of the need to accommodate and the employer then fail to provide reasonable accommodations. After the change in Gamble’s work location and schedule, she either failed to notify the city of her need for updated accommodations or she received reasonable accommodations.
Power of Initiative
To be valid, initiative provisions must be both consistent to ballot title and be germane to one another.
American Hotel & Lodging Association v. City of Seattle, 6 Wn. App. 2d 928 (12/24/2018) – Seattle voters approved Seattle Initiative 124 to provide certain safeguards for hotel workers, including protection of workers against sexual assault. The initiative contained seven parts, with sections guarding against sexual assault, providing for a register of hotel guests who have engaged in improper sexual behavior with hotel workers, providing for exclusion of guests who violate the ordinance, and offering job protection of workers, if there is a change in hotel ownership. The Hotel Association sued, arguing that the initiative was invalid due to it having more than one subject. While the trial court upheld the initiative’s validity, on appeal, the court of appeals reversed.
While an initiative's various parts may be consistent and germane to its ballot title, rational unity requires that provisions within the body of the initiative must also be germane to one another. In this instance, there was no unity between the safeguard of employees from sexual assault and the requirement that protects employees from harmful chemicals. The provision for job security when hotel ownership changes was not consistent with the other sections. Since there was no rational unity between the provisions of 1-124, it was impossible to determine whether any provision would have received majority support if voted on separately. (The court’s decision indicates that the initiative violated the one-subject requirement of RCW 35A.12.130, part of the Optional Municipal Code. That section does not appear to have relevance to a first class city, nor is a state constitution section, which is only applicable to state legislation. However, a Seattle city charter provision does require a single subject.)
Public Records Act
Polygraph results for a police officer indicating past instances of dishonesty are not exempt from disclosure.
Sheats v. City of East Wenatchee, 6 Wn. App. 2d 523 (12/11/2018) – East Wenatchee police officer Sheats sought employment with another agency. As part of the application process, Sheats took a polygraph test. The test results indicated past instances of dishonesty. Ultimately, those results were requested by the county prosecutor so he could provide exculpatory evidence in a criminal defendant’s trial where Sheats would be a prosecution witness. Although the city initially declined to supply the report, after the prosecuting attorney filed a motion to obtain a copy, the city furnished the report. Thereafter, a local newspaper also sought a copy of the report. The city advised Sheats of the newspaper’s request and Sheats sought an injunction to prevent the release of the report. The court granted a temporary restraining order preventing the release. After resolving some procedural issues, the court denied the request for an injunction and required release of a redacted report; Sheats appealed. On appeal, the court affirmed.
A person seeking to enjoin the dissemination of exempt records “has a heavy burden, which includes establishing that dissemination of the record clearly not to be in the public interest.” Since the redacted polygraph report at issue contained reference to past wrongdoing, the public has an interest in knowing whether the officer was law-abiding and an interest in viewing the report. The prosecuting attorney had a constitutional responsibility to disclose exculpatory evidence and impeachment evidence favorable to a criminal defendant. Sheats cited RCW 42.56.250(2) as exempting disclosure of applications and related materials for public employment. However, the exemption does not, in and of itself, support an injunction preventing the release of the record. The person seeking the injunction must show that “disclosure would clearly not be in the public interest and would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions.” Sheats was not able to establish that the release of the record was clearly not in the public interest; the public has an interest in knowing if an officer is law-abiding. Sheat’s privacy rights were not violated since the record is a matter of public concern.
Power of Initiative
An initiative requiring a public vote to determine whether to ban public funding for the location of safe injection houses, and provide civil liability for the operation of a site, is beyond the scope of the initiative power.
Protect Public Health v. Freed, 192 Wn.2d 477 (12/6/2018) – A task force, formed to address issues involving drug addiction, developed a series of strategies, including one calling for the location of safe injection houses. The task force recommended the location of two demonstration sites, one in Seattle and another in King County. The Board of Health endorsed the proposal and sought the county, cities, and state to implement the recommendation. Joshua Freed organized an initiative campaign to require a vote on the plan. The initiative called for, among other things, a prohibition of the use of public funds for "registration, licensing, construction, acquisition, transfer, authorization, use, or operation of a supervised drug consumption site." The county council appropriated funds for implementation. Professionals and community members formed a group to protect the safe injection site proposal, seeking pre-election review of the initiative that sought the ban. The trial court found that the initiative was beyond the scope of the local initiative power because it interfered with the duties and obligations of the Board of Health and council, and the local legislative authority to budget. That decision was directly appealed to the Supreme Court.
Although courts do not generally allow pre-election review of initiatives, they will determine if the proposed law is beyond the scope of the initiative power. Both home rule charters and state decisions place limits on the power of initiative. One such limit is whether the initiative involves powers granted by the legislature to the governing body of a city, rather than the city itself. Relating to this issue, state law provides that "each county legislative authority shall annually budget and appropriate a sum for public health work.” This statutory delegation limits the scope of the local initiative power. Because the initiative would control how and where money could be spent, its aim is directly at the budget appropriation. The ability to set the budget and appropriate money to public health work is a specific delegation by the legislature to the county's legislative authority. Accordingly, the subject is beyond the scope of the initiative power. The initiative’s proposed budgetary restrictions would improperly interfere with the legislative authority of the county council to set budgets and appropriate money for public health work.
Hydraulic Project Permitting
Some hydraulic projects above the ordinary high-water line are reasonably certain to affect those waters and thus require permit from Fish and Wildlife.
Spokane County v. Department of Fish and Wildlife, 192 Wn.2d 453 (12/6/2018) – A "hydraulic project" is defined as "the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state" in RCW 77.55.011(11). Spokane County, as well as other counties, argue that construction of, or work on a project that will occur exclusively above the ordinary high-water line does not require a permit from Fish and Wildlife. Initially the counties sought an opinion from the attorney general that would exempt the permitting requirement for bridge maintenance and construction when the work would occur above the ordinary high-water line. The attorney general concluded permitting was required for “all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state," regardless of whether the activity is above or below ordinary high-water lines. The counties challenged the interpretation in court and lost and thereafter appealed the decision directly to the Supreme Court. The Supreme Court affirmed.
The court, analyzing under rules of statutory construction, found the statutory definition of “hydraulic project” unambiguous and held that the definition was reasonably certain to apply to projects above the high-water line that are reasonably certain to "use, divert, obstruct, or change the natural flow or bed” of the waters. The Court deferred to the Department's expertise in determining which projects meet that standard. The Court found examples of projects that would be covered and reviewed legislative history in reaching its conclusion. The Court held that under the plain language of RCW 77.55.021, the Department of Fish and Wildlife’s jurisdictional grant of permitting authority included upland projects that meet the effects test set forth in RCW 77.55.011(11). The Court also held that the effects test requires reasonable certainty, not absolute certainty.
LUPA / Exhaustion of Remedies
Exhaustion of remedies can be demonstrated.
Aho Construction v. City of Moxee, 6 Wn. App. 2d 441 (12/6/2018) – Aho Construction proposed a fairly large subdivision in the city. One requirement set out during the SEPA review and later insisted upon by city officials was the extension of a current street. Aho objected and took an appeal to the hearing examiner and later to the city council. Ultimately the council required extension of the street. A suit was brought under LUPA; the trial court rejected various claims by Aho Construction, finding that Aho had not exhausted its remedies before filing a LUPA appeal. The trial court’s decision was then appealed to the court of appeals. Although Aho’s challenge was based upon a number of issues, the court reached its decision on exhaustion of remedies; the court reversed the trial court’s decision, finding that Aho had by its actions exhausted it remedies, thus allowing it to bring a lawsuit under LUPA.
The court concluded:
[T]he Washington test for exhaustion of remedies imposes a minimal burden on the challenger of the administrative agency action. Law is not a mathematical exercise. Thus, we cannot measure what constitutes more than a hint or greater than a slight reference. Nevertheless, we assemble, from Washington cases, factors germane to determining sufficiency of exhaustion, which include: the number of sentences devoted to an issue in any written brief given to the administrative agency; the amount of language devoted to the argument compared to the amount of language devoted to other arguments; the clarity of the presentation before the administrative agency; citations to statutes and case law and the accuracy of the citations; if the party asserts numerous issues in a brief; whether the issue on appeal was separated in the brief or introduced with a heading; and whether the challenger’s presentation to the administrative agency applied facts to the law. We expect further cases will add to these factors.
LUPA / Building Permit Fees
Challenge to cost of a building permit fee paid for a building permit is subject to LUPA and must be brought within 21 days of final action.
Community Treasures v. San Juan County, 192 Wn.2d 47 (10/11/2018) – Community Treasures (Treasures) applied for building permits. The county requires payment of a fee before a building permit application can be reviewed. Treasures paid the fees but three years later filed a lawsuit arguing that the fees were excessive and violated RCW 82.02.020. The county argued that Treasures failed to pursue administrative remedies and its lawsuit was precluded under LUPA, since it was filed beyond the 21-day limit from the date of the final action. The trial court agreed with the county and dismissed, as did the court of appeals. On review by the Supreme Court, the dismissal was affirmed. Payment of the application fees is a requirement for the issuance of a permit which constitutes a determination on an application for a project permit, reviewable under LUPA. The court concluded that the Treasures challenge did not fall under one of the exceptions to LUPA. The challenge was not to the passage of the fee ordinance, it was to the payment of the fees imposed for a completed project permit application and that requires an appeal under LUPA.
Public Records Act
Phone conversation recordings of jail inmates and records relating to the recordings are exempt from disclosure.
Zabala v. Okanogan County, 3 Wn. App. 2d 156 (10/2/2018) – Zabala made five record requests related to recorded and/or monitored jail phone calls, as well as voicemail, email, audio, notes, reports, transcripts, arguments, motions, briefs, memos, letters, and any other record that were used in the prosecution of crimes by the prosecutor’s office. The records were not provided for several reasons, including that they were exempt from disclosure as recorded conversations from correctional facilities. Zabala sued and, upon motion of the prosecutor, the court dismissed. Zabala appealed and the court of appeals affirmed.
RCW 70.48.100(2) exempts records of persons confined in jail. The court limited the exemption to records prepared as a result of the inmate being in jail and noted that the statute does not limit the exemption to records only in the possession of the jail. The exemption extends to jail records despite that the jail forwarded the records to the prosecutor’s office. The exemption “does not disappear when an agency other than the jail creates the records concerning the inmate, the exemption further extends to records created by the Okanogan County prosecuting attorney concerning the jail inmate.” Other issues regarding the records request were resolved in the county’s favor by a portion of the opinion that was not recorded.
Public Works Contracting
Failure to immediately file a written protest precludes later claim for breach of contract.
NOVA Contracting v. City of Olympia, 191 Wn.2d 854 (9/27/2018) – The city contracted with Nova Contracting to replace a culvert. There was a short time allowed for the completion of the project. After the contract signing, significant communication between the city and NOVA did not resolve objections made by the city. At a point, timely completion of the contract became difficult, if not impossible. The city terminated the contract and NOVA sued, arguing that the city had breached by failing to act in good faith and fair dealing. The city prevailed in superior court and later, on appeal to the Supreme Court, the Court reversed in part, finding that NOVA’s failure to immediately file a notice of protest, as required by section 1-04.5 of the Standard Specifications for Road, Bridge, and Municipal Construction, barred its claim.
Adult Entertainment Regulation
Regulations that permit license suspension or revocation of erotic dancing standards do not provide for strict liability and do not constitute prior restraint of speech in violation of the constitution.
Forbes v. Pierce County, 5 Wn. App. 2d 423 (9/18/2018) – Pierce County developed regulations for the operation of erotic dancing businesses, requiring that, among other things, performers must perform on an elevated platform and be a stated number of feet away from the closest customer. Inspection of the appellant’s business indicated that there were violations of the county’s regulations. The county provided notice that future violations could result in suspension or revocation of the business’s license. After more violations were observed, the county suspended the business license. The suspension was appealed to a hearing examiner and, ultimately, to the superior court where the court upheld the county’s actions. On appeal, the court of appeals affirmed.
The court first considered standing. One section of the county’s code provided for criminal sanctions for violations. The county did not proceed under that section though, instead suspended the appellant’s business license subject to an appeal. The court denied appellant’s standing to challenge the criminal section of the code, since criminal sanctions were not sought. There was standing for the appellants to challenge the business’s license suspension.
As to the issue of unconstitutionality, suspension of exotic dance licenses is a prior restraint; however, since the county regulation did not provide for license suspension based on strict liability, it was not unconstitutional. Providing a stay of license suspension or revocation if an appeal is requested, as is provided by the Pierce County regulation, is a safeguard against a finding of unconstitutionality. Knowing or permitting violations of the regulations involves some fault and, thus, the county’s regulation does not allow the imposition of sanctions in the absence of a finding of fault; there is no strict liability. And without the suspension being based on strict liability, the regulation does not violate the constitution. The county’s regulation considered by the court was not a time, place, or manner of expression; it did not place any substantive limits on how a license holder could engage in any form of expression. There was no First Amendment issue.
Claim for Damages on Permit Applications
Permit decision was not arbitrary or capricious when city did not know, or should not have known, that a court would ultimately determine that the building permit requirement it imposed was unlawful.
Church of the Divine Earth v. City of Tacoma, 5 Wn. App. 2d 471 (9/5/2018) – The Church of the Divine Earth (“Church”) sought a permit to construct a parsonage on a parcel of land it owned. The city required Church to dedicate a 30 foot right-of-way to accommodate the pedestrian and vehicle traffic that would be generated by the parsonage. Church argued that the conditions placed on the application were exempt because of the property’s religious status. A city review panel reduced the required right-of-way dedication from 30 feet to 8 feet. Church continued to contest the city’s requirement and the city convened a meeting of three department heads to consider whether the requirement was consistent with constitutional nexus and proportionality requirements. While some requirements were removed, the right-of-way dedication was not. Church appealed. After the city hearing examiner declined to consider the appeal due to lack of jurisdiction, Church filed a LUPA appeal in superior court. The court concluded that the right-of-way dedication was unlawful as it failed to satisfy Nollan/Dolan nexus and proportionality requirements. Church then filed a claim for damages under RCW 64.40.020 for damages it suffered through the permit application process.
As to the claim for damages, superior court concluded that the city’s required dedication of right-of-way “was not arbitrary or capricious without lawful authority and that the city did not know and should have not known that the dedication was unlawful.” On appeal, the court affirmed the trial court’s decision. Church wanted to introduce evidence that the city had sought a 30 foot right-of-way; the court ruled that collateral estoppel barred the issue from being re-litigated since Church had an opportunity to raise the issue during the LUPA appeal, but it did not do so. Church challenged the court’s findings of fact. As to finding regarding nexus and proportionality, substantial evidence supported the trial court’s decision. The court rejected the RCW 64.40.020 claim. The city had performed a Nollan/Dolan analysis and had determined the right-of-way dedication was necessary to address the impacts of the project. The city did not know its actions would be found unlawful when it made the dedication requirement. The fact that the dedication was ultimately reversed does not demonstrate that the city should have known its actions were unlawful when the dedication decision was made. The Church argued that the city should have known its actions were unlawful. But, even though the Church and city disagreed, it does not follow that the city should have known the dedication would later be found unlawful. Other issues, including a public records issue, were considered by the court and handled in an unpublished portion of the opinion.
One government agency may condemn land owned by another, but the court must first review whether use by the first agency is compatible (prior public use doctrine) with the proposal of the second government entity.
Central Puget Sound Regional Transit Authority v. WR-SRI 120N, 191 Wn.2d 223 (8/2/2018) – Sound Transit (Sound) seeks to construct a light rail extension in Bellevue. Among the properties Sound sought to condemn for its construction are properties owned by Seattle for future electrical transmission lines. Seattle objected to Sound's condemnation, arguing that since Sound would be obtaining aerial rights, its use would interfere with transmission lines. Sound disagreed, responding that Sound’s use would not interfere with the transmission lines. Seattle filed suit to block Sound’s use. The court ruled in Sound’s favor, concluding it had authority to condemn as it had met public use and necessity requirements. Seattle presented testimony that the uses were incompatible, but several courts failed to address the prior public use doctrine or the compatibility of the two agencies public uses of the land. There were five lawsuits; in one of the suits the court concluded that the uses were compatible. Seattle appealed.
The supreme court held that Sound has statutory authority to condemn property owned by another agency. Sound's condemnation satisfies public use and necessity requirements, but it remanded the cases so the trial courts could make a determination about whether the uses were compatible. Sound’s authority to make the condemnation was either expressed or implied. The authority did not extend to existing transportation facilities or to land already put to a public use. The statutes provide authority to condemn transportation facilities if consent is given. Authority is implied since the power of condemnation over public agencies exists unless the property is being used for transportation facilities. (If there was no power, there would be no need for the exception.) Sound’s implied authority fulfills the legislative intent to implement a high capacity transportation system. Seattle argued that the authority only applies to private property; the court disagreed. The court found that Sound's use of the property for transportation was a public use and that it is necessary for the light rail project.
Does the prior public use doctrine bar the condemnation? Sound could not condemn, if the condemnation would destroy the existing use. Although Seattle’s use was a public use, some of the court decisions failed to determine whether Sound’s use would destroy Seattle’s use of the property; that issue must be remanded. Even though Seattle is not currently using the property for electricity transmission, there is a reasonable expectation of its future use for that purpose. The trial courts must determine whether the uses are incompatible (there had been conflicting evidence provided). If the uses are incompatible, the prospective use should be restricted to the extent that the current public use is compatible; the court will not weigh which use outweighs the other.
Public Works Contracting / Gender Discrimination
Gender discrimination can be inferred through the totality of circumstances.
An injunction, not monetary damages, is only available when work on a contract has not been started or completed.
A claim for negligent representation cannot be dismissed by summary judgment if the plaintiff has provided evidence of financial loss because of the misrepresentation.
The public duty doctrine does not apply if a special relationship between the parties can be shown.
Specialty Asphalt v. Lincoln County, 191 Wn.2d 182 (7/26/2018) – The county sought bids for the paving of a parking lot. The call for bids incorrectly indicated that no proposal or performance bond were required. The owner of Specialty Asphalt’s (“Specialty”), one of two bidders on the project, was a woman. During the project walkthrough, a comment was made by a county representative that heels were perhaps not appropriate for the walkthrough. Later an unscheduled walkthrough was given to the other bidder; Specialty argued that the other bidder had been treated more favorably. The county’s operations and permit coordinator contacted Specialty and discouraged it from bidding. Specialty was awarded the contract but notification to Specialty of the award was delayed. After the award, the county tracked Specialty’s status on an on-going basis through the Department of Labor and Industries; normally a check is made prior to award and the county could not recall whether the other bidder had been checked. Specialty refused to sign the contract as it required a bond. Negotiations occurred, including an offer by the county to pay for the bond, but Specialty would not sign the contract. Ultimately the county withdrew its offer and Specialty sued, alleging gender discrimination, negligent misrepresentation, and breach of contract. The county sought and the court granted summary judgment on Specialty’s claims and ordered the county to allow Specialty to perform the work without a bond. Specialty declined, indicating that the cost of the project had increased, the condition of the parking lot had deteriorated, and the law governing the project had changed. The case was dismissed, Specialty appealed, and the court of appeals affirmed.
The supreme court reversed summary judgment on the gender discrimination claim since there were competing inferences of discrimination and nondiscrimination. Although some elements of evidence, standing alone, might not create a reasonable inference of discrimination, viewed together they can create such an inference. Summary judgment dismissal of the negligent misrepresentation claim was improper since Specialty provided evidence of recoverable reliance damages. Alleged pecuniary damages are sufficient to overcome a summary judgment dismissal when the damages incurred arise out of reliance on a misrepresentation. Damages can arise prior to performance, such as for the time required to prepare for a bond and for other possible jobs that could not be pursued. Whether Specialty justifiability relied on the misrepresentation is a factual issue. The county argued that Specialty’s claim for damages for negligent misrepresentation was barred by the public duty doctrine. The court disagreed since the trial court had found that an enforceable contract had been formed and that created a “special relationship,” one of the instances that will defeat application of the public duty doctrine. Specialty also sought monetary damages for breach of contract; however, since Specialty did not complete or even begin work on the project, it can only seek injunctive relief.
Court may prevent initiative from appearing on ballot if it exceeds scope of initiative power and is inconsistent with state law.
Port of Tacoma v. Save Tacoma Water (STW), 4 Wn. App. 2d 562 (7/25/2018) – Two initiative petitions were circulated seeking a requirement for a vote of the people before large amounts of water (one million or more gallons per day) could be sold to a single customer. A lawsuit was filed by the port and others seeking an injunction to keep the initiatives from appearing on the ballot. The superior court issued an injunction, finding that the initiative related to an administrative matter and was beyond the power of the initiative and in conflict with state law. On appeal, the court’s decision was affirmed.
STW argued that the court lacked authority to review an initiative pre-election and that doing so violated separation of powers principles. The court disagreed; a review may occur if the proposed law is beyond the scope of the initiative power. Review of an initiative to determine if it is inconsistent with state law does not violate separation of powers. The initiative sought to add a new requirement to the existing process for obtaining water; as such, it was administrative in nature and beyond the power of initiative. Furthermore, the initiative would allow the denial of water, even if all requirements of the state law were met, thus it was inconsistent with state law. Other portions of the initiatives were found not to be severable since they were designed to implement the initiative’s requirements. A pre-election review of an initiative does not violate freedom of speech; there is no First Amendment right to place a local initiative on the ballot.
Public Records Act
Court has broad discretion in determining penalty for Public Records Act violations and may consider penalty factors using substantiated facts.
Hoffman v. Kittitas County, 4 Wn. App. 2d 489 (7/24/2018) – Hoffman requested some records from the Sheriff’s Office, including photographs and video recordings. The records clerk, misunderstanding the law, contacted Hoffman and advised that since Hoffman wasn’t involved in some of the incidents, she could not provide those records. Based upon that misunderstanding, Hoffman agreed to accept just redacted face sheets of the reports. Another clerk overheard the record clerk’s conversation with Hoffman and questioned the decision to withhold certain records. The face sheets were delivered to Hoffman. Upon advice from her supervisors, the clerk contacted Hoffman, who indicated that he had received the records. Later the other clerk discovered information regarding Hoffman’s request and, upon advice of the supervisors, contacted Hoffman again. Hoffman was advised that he should have been given additional records. Hoffman filed a new request, renewed his initial request, and was provided the requested records. Hoffman sued the county, alleging the records had been withheld because of bad faith because the records’ clerk and a person included in the requested records were “drinking buddies.” The court, however, found that while the county had acted negligently, not in bad faith, it had provided appropriate supervision and its response was timely, although not adequate. Hoffman was awarded attorney fees and a penalty of 50 cents per day per document. Hoffman appealed and, on appeal, the court’s decision was upheld.
Courts have broad discretion to set appropriate penalties. The trial court’s decision will only be reversed if the wrong legal standard had been used, or it relied on unsupported facts, or adopted a view that no reasonable person would take. As long as a factual basis exists to support a trial court’s decision, the abuse of discretion standard is met and further scrutiny is unwarranted, regardless of how the trial court chooses to articulate its decision. Hoffman argued that the court had used the wrong legal standard in determining the penalty; it should have determined whether there was the presence or absence of bad faith. The court concluded that Hoffman had put too much emphasis on a finding of bad faith. The focus should be placed on aggravating and mitigating factors, only some of which address a violator’s level of culpability. Agency culpability is only one factor to be used in determining a penalty. Agency “good faith” is a relevant mitigating factor and an agency’s “negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA” is a relevant aggravating factor. A trial court’s choice of how to label agency noncompliance should not be the basis for affirming or reversing a penalty decision. Instead, it is sufficient for a trial court to recognize that culpability exists in matters of degree and that more culpable conduct merits a higher penalty than less culpable violations. The court held that the county had acted in a timely manner, both at the outset and in its follow up. The penalty was low, but reasonable, and Hoffman had not suffered any financial harm.
Public Records Act
Court may consider jurisdiction’s size and financial ability in setting penalty for public records violation
Zink v. City of Mesa, 4 Wn. App. 112 (6/14/2018) – The Zinks sued the City of Mesa when the city failed to provide certain records that had been requested under the Public Records Act. After earlier appellate court review, the trial court awarded the Zinks penalties of $352,954 plus attorney fees and costs. Among the factors considered by the court in establishing the amount of penalty was size and financial ability of the city and the amount of penalty necessary to act as a deterrent against future violations. The Zinks appealed the award arguing, among other things, that a 2011 legislative change eliminating a floor per day penalties should not be applied retroactively and that the court did not have discretion to reduce the penalty based upon the jurisdiction’s size and limited resources. The city cross-appealed, arguing that the trial court abused its discretion by imposing a penalty that exceeded 100 percent of the city’s annual general fund unrestricted tax revenue and that insufficient evidence supported the trial court’s finding that a MRSC memo should have put the city on notice of the impropriety of some of its document redactions.
The court held that the 2011 amendment eliminating the $5 floor did apply retroactively. The trial court did not abuse its discretion by treating “deterrence” as the most important aggravating factor in determining its penalty. The court rejected the argument that the court should not impose a penalty that is proportionately higher than that imposed upon other jurisdictions for similar violations. The trial court’s process of first reviewing the penalty factors for each violation and then considering the overall impact was not error. The court cannot impose a cap on penalties; if there is to be a cap, legislative action would be required. The trial court did not abuse its discretion by refusing to lower the penalty further. The MRSC memo regarding exemptions raised a “red flag” and could be considered in determining penalties after it was received.
If juvenile felony conviction is sealed, the underlying offence cannot be used to deny a concealed pistol permit.
Barr v. Snohomish County Sheriff, 4 Wn. App. 2d 85 (6/12/2018) – As a juvenile, Barr was adjudicated of two Class A felonies. Twenty-five years later Barr sought and obtained a court order sealing his juvenile record. Additionally, the court instructed that Barr entered an order indicating that Barr qualified for restoration of his firearm rights. Thereafter, he applied for a concealed pistol permit (CPL) and his application was denied because of the juvenile court record. Barr sought a writ of mandamus from the court, asking that the sheriff be required to issue a CPL. The superior court denied the request and Barr appealed. On appeal, the court of appeals reversed. Under the juvenile sealing statute sealed adjudications are to be “treated as if they never occurred.” See RCW 13.50.260(6)(a). Thus, Barr is not prohibited from obtaining a CPL.
Public Records Act
PRA standard for granting an injunction also applies to data upheld as "trade secrets."
Lyft, Inc. v. City of Seattle, 190 Wn.2d 769 (5/31/2018) – This case involved a public records request for data reports filed by “transportation networking companies” Uber and Lyft with the city of Seattle. Uber and Lyft considered at least some of the data to be trade secrets, and the city of Seattle agreed to provide confidentiality “within the confines of state law.” The city also agreed to provide notice to Uber and Lyft if it received a public records request for records designated as confidential or proprietary.
A public records request was made for “zip code reports,” which includes, among other things, the percentage and number of rides picked up in each zip code and the pick-up and drop-off zip codes for each ride. Uber and Lyft sought an injunction preventing disclosure, claiming that the data was confidential under the Uniform Trade Secrets Act (chapter 19.108 RCW).
The court said it was a “close call,” but it upheld a trial court finding that the reports constitute a trade secret. However, the court ruled that the reports were subject to disclosure under the Public Records Act. In so doing the court held that the Public Records Act standard (RCW 42.56.540) for granting an injunction applied. Under that standard, a permanent injunction may only be granted if disclosure is clearly not in the public interest and disclosure would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions. In a 5-4 decision, the court found that this standard was not met and reversed the trial court’s grant of a permanent injunction.
Public Records Act
Under the common interest doctrine, the communications between a county and DOE may be privileged under the work product doctrine.
Kittitas County v. Allphin, 190 Wn.2d 691 (5/17/2018) – After Kittitas County, in cooperation with the State Department of Ecology (DOE), brought a code enforcement action against Allphin, he filed a public records request with Kittitas County seeking access to enforcement records. The county withheld some emails exchanged between the county prosecutor and the DOE, claiming that they were work product. Allphin argued that the county waived the work product privilege by communicating with DOE. The court of appeals ruled that the privilege was not waived under the “common interest doctrine,” which provides that if multiple parties share confidential communications relating to a common claim or defense, the communications remain privileged (see Kittitas County v. Sky Allphin, 195 Wn. App. 355 (2016)). In a 5-4 decision, the Washington Supreme Court affirmed, ruling that under the common interest doctrine, the communications between the county and DOE remain privileged under the work product doctrine.
Land Use Petition Act (LUPA)
A city-Initiated site-specific rezone is subject to appeal under LUPA.
Schnitzer West, LLC v. City of Puyallup, 190 Wn.2d 568 (5/10/2018) – Following the annexation of territory, the city, by its own action, extended an overlay zone into a portion of the newly-annexed area, solely affecting property owned by Schnitzer and significantly reducing his development potential. Schnitzer brought a LUPA appeal. Puyallup moved to dismiss the petition for lack of subject matter jurisdiction arguing that the ordinance was not a "land use decision" subject to review under LUPA. The court rejected the city’s argument and found that the city’s ordinance was an unlawful site-specific rezone and was invalid as a matter of law.
The court of appeals reversed, finding that the city’s action was not a site-specific rezone subject to review under LUPA. The Washington Supreme Court reversed the court of appeals decision, holding that the city’s decision to impose the overlay on Schnitzer’s property was a site-specific rezone because (1) the decision affected a specific tract of land; (2) the adopted ordinance resulted in a classification change; and (3) the rezone was requested by a specific party—the city council. The court further held this was not a type of legislative action excluded from review under LUPA. Instead, the types of legislative action excluded under LUPA are those similar in nature to area-wide rezones and annexations. The court remanded the matter back to the court of appeals to proceed on the merits of the city’s appeal.
Torts / Risk Management
Recreational immunity statute applies to land opened for recreational purposes.
Lockner v. Pierce County, 190 Wn.2d 526 (4/19/2018) – Lockner was injured when she fell from her bike on a trail maintained by Pierce County. The county argued that it was not liable under RCW 4.24.210, the recreational use immunity statute. That statute provides limited immunity to property owners who make their land available to the public for recreational use without charging a fee.
The trial court ordered summary judgment in favor of the county under the statute. The court of appeals reversed, holding that there was a question of fact as to whether the trail was open to the public “solely” for recreational use. The Washington Supreme Court ruled that the statute is not limited to land that is used exclusively for recreation purposes. So long as the land has been “opened for recreation,” the statute applies. The court ruled that it was undisputed that the county had opened the trail for recreation, so it reinstated summary judgment in favor of the county.
County’s ordinance prohibiting the retail sale of marijuana in unincorporated areas of the county is valid.
Emerald Enterprises v. Clark County, 2 Wn. App. 2d 794 (3/13/2018) – Clark County enacted a ban on the retail sale of marijuana within the unincorporated areas of the county. Emerald Enterprises (Emerald) obtained a license from the state for the sale of marijuana within Clark County. Its application to the county for retail sales, however, was denied. While Emerald applied to the county for a building permit to operate a general retail business (crafts, collectibles, novelty items, general merchandise), it nevertheless began to sell marijuana. Upon discovery of the nature of Emerald’s business, the county revoked Emerald’s building permit. Emerald appealed, lost in superior court and then appealed, arguing that the county ban on the retail sale of marijuana violated Art. XI section 11 of the state constitution, thwarted the legislative purpose of the Uniform Controlled Substance Act (UCSA), exceeded the authority given counties by the UCSA, and was preempted by state law. The court of appeals disagreed and affirmed the trial court’s decision. The court noted that the county’s police power, granted by the constitution, is broad and provides authority to adopt regulations. The county’s regulation does not prohibit what state law permits (UCSA permits the sale of marijuana, but it does not grant the affirmative right to make sales). The law does not prohibit a county from adopting a regulation prohibiting the sale of marijuana. The legislative purpose of UCSA is not thwarted since law enforcement is still able to place more emphasis on enforcing violent and property crimes, tax revenues are still generated for education, health and other programs, and marijuana sales are removed from illegal drug organizations. There is no conflict with state law. The county did not exercise unauthorized power and state law does not either expressly or impliedly preempt the county regulation.
Election results will not necessarily be voided if follow-up telephone contact was not made to voters (who did receive mailed notice) who had neglected to sign ballot or whose signatures did not match those on file.
Meise v. Jaderlund, 2 Wn. App. 2d 689 (3/8/2018) – A school bond election was barely validated in an election where some ballots were not counted either because they were not signed or the signature used did not match the signature on file. The auditor notified these voters of the problem by mail, but later failed to telephone those who did not respond to the mailed notice, as provided for by statute. The election was challenged by petitioners who argued that the failure to give a telephone notice invalidated the election. The court, after concluding that the challenge was timely, decided that the election results could stand. Its decision was based upon four tests to determine whether an irregularity required overturning the election. The failure to telephone failed a directory requirement, not a mandatory one. When the notice requirements are considered as a whole, there was substantial compliance. The petitioners did not prove that the uncounted ballots, if counted would provide a different election result. The failure to telephone these voters did not disenfranchise them.
Public Records Act
Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure.
John Does v. Department of Corrections, 190 Wn.2d 185 (2/22/2018) – Donna Zink made a public records request to the State Department of Corrections for Special Sex Offender Sentencing Alternative (SSOSA) evaluations of sex offenders. The state indicated that it would review the records for possible exemptions. The persons covered by the evaluations (the “John Does”) sought and obtained a restraining order prohibiting their release. Ultimately the state was enjoined from releasing the evaluations and that decision was appealed. The court of appeals affirmed the trial court decision and that decision was then appealed to the supreme court. In a divided opinion, the court reversed. The main issue covered by the decision was whether SSOSA evaluations are exempt from disclosure because they contain health care information. The court held that they were not exempt. The evaluations do not directly relate to the patient’s (the offender’s) health care; the information is only incidentally related. The evaluations are designed to assist the court in determining whether alternative sentencing is warranted. They are like forensic examinations, which are not subject to the same privacies and privileges as medical evaluations. Amenability to treatment is not a medical determination. SSOSA evaluations require a proposed treatment plan, but that alone is not sufficient to render it "health care information." The court also concluded that pseudonyms should not have been allowed in this case.
Public Records Act
Councilmember’s personal Facebook page is not per se a public record.
West v. City of Puyallup, 2 Wn. App. 2d 586 (2/21/2018) – Puyallup Councilmember Julie Door has a Facebook page, “Friends of Julie Door.” Arthur west made a public records requests to the city for the posts on the Facebook page. The city provided some documents, but not the posts. West sued and the court concluded that the Facebook records were not public records. West appealed and the court of appeals affirmed, stating:
[A] personal Facebook page can constitute an agency’s public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official’s scope of employment or official capacity. However, we hold that Door’s particular Facebook posts at issue in this case were not public records as a matter of law because she did not prepare them within the scope of her official capacity as a City Council member.
Door was not conducting public business or otherwise furthering the city’s interests. Although the posts were writings, many were informational and did not directly address the “conduct” or “performance” of government functions. West argued that the city must be deemed to have “prepared” the posts, as they were prepared by the councilmember. The court disagreed. Door was not acting in her official capacity as a councilmember and she was not conducting public business on her page. While the page did contain some city information, it was minimal and informational and its inclusion was not in the scope of Door’s employment or official capacity. The page did not meet the criteria for being a disclosable public record.
Failure to maintain sewer line may result in finding of liability.
Acosta v. City of Mabton, 2 Wn. App. 2d 131 (1/18/2018) – The Acostas suffered property damage when a city sewer line became plugged and raw sewage backed up into their home. The Acostas claimed, among other things, that the cause of the blockage was a buildup of grease which had solidified in the sewer line. Although the city’s inspection initially suggested that the blockage was caused by grease, later it was argued that the blockage was caused by a semi-inflated ball. The Acostas sued and the city sought a summary judgement. The court ruled for the city and the Acostas appealed. Evidence had been provided indicating that while the city used to jet the sewer lines and/or used a chemicals to maintain the lines, that practice was stopped two years before and maintenance was limited to responding to obstructions. Examining the evidence and arguments, the court concluded that the blockage was likely caused by the buildup of grease in the line. The city was found to be negligent by its failure to periodically clean the lines. Citing an earlier decision, the court found that the city had a duty to maintain the sewer lines and its failure to do so constituted negligence. "Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable."