Washington State Court Decisions

November 1993 to Present

• Washington State Supreme and Appellate Court Decisions
• Washington State Court Decisions published within the last 90 days

Washington State Court Decisions Affecting Cities, Towns, Counties, and Special Purpose Districts, 2008-2013

The following decisions are in reverse chronological order: (This is not a complete list of all new court decisions that affect cities, towns, counties and special purpose districts in the State of Washington, but a selection of highlights.)

2013 | 2012 | 2011 | 2010 | 2009 | 2008 | 2007-2003 | 2002-1998 | 1997-1993

2013

• Resident Action Council (RAC) v. Seattle Housing Authority, ___ Wn.2d ___ (05/09/2013) - Public Records Act

  The issue before the court was whether grievance hearing decisions filed with the housing authority were exempt from disclosure. While welfare recipients' personal information is exempt from disclosure, the Public Records Act requires redaction and disclosure of public records insofar as all exempt material can be removed. Applicable federal regulations do not exempt the hearing decisions from disclosure, nor do applicable federal regulations preempt the Public Records Act. This is a lengthy opinion. It provides a very good summary of the Public Records Act, along with a flow chart to determine whether a record is exempt and a listing of exemptions, divided into categorical and conditional exemptions. The court required the housing authority to develop and publish public records procedures. It also required that records requested to be provided in an electronic format be so provided.

• City of Seattle v. Fuller, ___ Wn.2d ___ (05/02/2013) - Criminal Law, Restitution

  Fuller was convicted of a misdemeanor in municipal court and was required, among other things, to pay restitution. He appealed, however, arguing that legislative amendments to RCW 9.92.060 and RCW 9.95.210 stripped municipal court of its authority to impose restitution. The superior court, court of appeals, and finally the supreme court all disagreed. The supreme court concluded that, considering the amendments to the statutes in light of the legislature's intent and the surrounding statutes and case law, the amendments did not alter the authority of municipal courts to impose restitution.

• City of Longview v. Wallin, ___ Wn. App. ___ (04/30/2013) - Traffic cameras, Initiatives

  Longview adopted an ordinance providing for the placement of automated traffic safety cameras. An initiative was filed to reverse the action. Ultimately the initiative process was stopped after the Supreme Court concluded in Mukilteo Citizens for Simple Government v. City of Mukilteo, 174 Wn.2d 41 (2012) that the decision to provide for such cameras was not subject to initiative. Wallin appealed, arguing a variety of issues, including challenges to the city's standing, ripeness, Freedom of Speech, etc. The court, on appeal, denied Wallin's efforts, affirming the lower court's decision.

• Northshore Investors v. City of Tacoma, ___ Wn. App. ___ (04/30/2013) - LUPA

  Northshore sought to redevelop a golf course and applied for a rezone modification. The hearing examiner recommended denial and, ultimately, the city council agreed. Northshore initially filed a LUPA appeal following the hearing examiner's recommendation. The parties agreed that Northshore could file and serve an amended LUPA petition within 21 days of the Council's decision in order to address that decision. The Council denied Northshore's rezone modification request at a hearing. Northshore then filed an amended LUPA petition and, 23 days after the Council's hearing, served the city with that petition. The city filed motions to dismiss the amended LUPA petition for untimely service, but the superior court denied the motions. On appeal, the court reversed because the lawsuit was not served on the necessary parties within LUPA's strict statutory time period.

• In re Recall of Sun, ___ Wn.2d ___ (04/25/2013) - Recall

  Cy Sun is mayor of Pacific. A year after he was elected, a group of citizens began a recall effort, alleging that the mayor had committed acts of misfeasance and malfeasance, and violation of the oath of office. The superior court found two charges adequate for submission to the voters, namely, that Sun attempted to use the city police department as his own personal police force and that Sun's actions in not filling positions jeopardized the city's liability insurance coverage. Sun appealed and the supreme court affirmed the superior court's determination. One requirement for recall is that the petition sets out knowledge of the facts upon which the recall petition is based; the court upheld the lower court's determination since Sun did not contest the finding and essentially admitted the facts. The court found that Sun had ordered the police department to investigate the development of a pamphlet, not prepared by the use of public funds, that made statements Sun argued were untrue. This order, the court found, provided both a factual and legal basis for the charge. As to the second count, the court advised that when a recall petition seeks to recall an elected official for a discretionary act, the official must have exercised his or her discretion in a manifestly unreasonable manner. The court found that the recall proponent adequately alleged that Sun unilaterally mistreated employees, refused to follow required procedures, and violated union contracts. The second charge was both factually and legally sufficient.

• Cornu-Labat v. Hospital District No. 2, Grant County, ___ Wn.2d ___ (04/11/2013) - Public Records

  Cornu-Labat was a physician working at the Quincy Valley Medical Center. Following several investigations into alleged bad conduct, which were not substantiated, the district terminated Cornu-Labat's employment when he failed to take a psychological evaluation. Cornu-Labat then requested the documents related to the investigations. The district denied the request, citing various exemptions; the trial court granted Cornu-Labat's request and the district appealed. While several issues were returned to the trial court, some conclusions were reached: a peer review committee can include nonphysicians; a committee formed to investigate complaints against a physician is not a "quality improvement committee" whose records would be protected under RCW 70.41.200; RCW 70.42.062 provides that meetings and proceedings of the board relating to the suspension, denial, etc. of staff privileges are confidential, and "proceedings" would include minutes, however, other documents considered at such meetings may not be exempt from disclosure; and, even though Cornu-Labat had signed a contract indicating that all records relating to the professional staff would be confidential. That agreement may have protected some records while the doctor was employed, but it did not necessarily do so once he was terminated.

• Millson v. City of Lynden, ___ Wn. App. ___ (04/01/2013) - Sidewalk negligence

  Millson walked along a city sidewalk which was not in good repair. Distracted, she tripped on a raised portion of the sidewalk, falling and sustaining injuries. She sued. The trial court made a ruling, concluding that since the sidewalk defect was obvious, the city was relieved of its duty to keep the sidewalks "reasonably safe." An appeal was brought and the court reversed. A pedestrian is not required to keep his or her eyes on the sidewalk at all times. The fact that there is a visable sidewalk defect that could be seen does not in itself mean that the pedestrian was negligent. The failure to observe the defect, however, could possibly be considered in determining contributory negligence.

• Coy v. City of Duvall, ___ Wn. App. ___ (04/01/2013) - RCW 64.40.020 Relief from arbitrary actions

  Coy sought approval of a preliminary plat; the city denied the request due to wetlands issues on the property. Later Coy received approval, but he sued, arguing delay and arbitrary and capricious action by the city prior to its ultimate approval of the plat. Coy failed in his attempt to recover damages as RCW 64.40.020 allows relief only for those actions that occur after the cause of action arises. Damages that occur before the final action are not recoverable under the statute. The acts that Coy claimed constituted damages occurred prior to the plat approval.

• Keene Valley Ventures v. City of Richland, ___ Wn. App. ___ (03/28/2013) - Inverse Condemnation

  Keene Valley owned land that was affected by water entering the land from city systems. At the trial the court concluded that Keene Valley had proved trespass, nuisance, and inverse condemnation, but that the damage to the land was temporary because Richland could re-route the water to flow away from the property. The court also ruled that Keene had failed to prove that it had sustained damage. On appeal, the court affirmed. Although Keene provided evidence that would have established the cost of restoring the property with fill dirt, judge was not required to credit that information and find it persuasive, and on appeal the court will not reweigh the evidence. Keene argued that once it proved that its property had been damaged, it was not required to prove the amount of damage. The court found that the plaintiff in an inverse condemnation action bears the burden of proof in establishing the diminution in value of its property. Keene did not adequately prove the cost of remedying the situation.

• In re Recall of Bolt and Jenson, ___ Wn.2d ___ (03/28/2013) - Recall

  Allegations of misconduct were made and a recall was begun against Marcus mayor and one councilmember. Although ten counts of misconduct were alleged, the superior court rejected none of them, allowing one, relating to an unauthorized purchase, to proceed. On appeal, the supreme court reviewed the nine rejected charges, concluding that they did not support recall, and also held that the purchase of used equipment before council authorization was not legally or factually sufficient to support recall. No intent was shown to violate the law, the purchase was submitted to the council for ratification (and it was ratified). The petitioners failed to identify a law or rule against purchasing equipment prior to approval by the town council.

• Clark County v. W. Wash. Growth Management Hearings Review Board, ___ Wn.2d ___ (03/21/2013) - Growth Management

  The county de-designated certain land from being agricultural land of long term commercial significance and designated the land as urban growth area, suitable for annexation. A challenge was brought to the county's actions. Unbeknownst to the parties, two cities annexed territory in the newly-designated urban growth area land. Eventually the dispute went to court and to the court of appeals. Although the parties did not appeal the annexations, the court of appeals nevertheless addressed them. The supreme court held that consideration was improper. "Appellate adjudication of claims resolved below and not raised by the parties on appeal, when not necessary to properly resolving the claims that are raised by the parties on appeal, thwarts the finality of unchallenged stipulations and rulings, expends limited judicial resources, diminishes the predictability of adjudication, discourages the private settlement of disputes, and overlooks the need for zealous advocacy to facilitate appellate review."

• Yakima County Law Enforcement Officers' Guild v. Yakima County, ___ Wn. App. ___ (03/19/2013) - Collective bargaining

  Are union proposals to require paid release time for (1) Guild representatives to attend "state or national meetings or conferences concerning training in labor issues concerning administration of the collective bargaining agreement [CBA] or law enforcement" and (2) Guild officers to "conduct or participate in general membership and/or Guild board meetings concerning collective bargaining or enforcement of the CBA? On appeal, the court concluded that paid release time to attend state or national conferences were permissive subjects of bargaining which may be negotiated, but it is an unfair labor practice to bargain to impasse over a permissive subject of bargaining. Release time for Guild board members to attend meetings on collective bargaining and enforcement of the CBA is neither illegal nor is it a nonmandatory subject of bargaining.

• Lakey v. Puget Sound Energy, ___ Wn.2d ___ (03/07/2013) - LUPA, Inverse condemnation

  Puget Sound Energy (PSE) sought to expand the size of an electrical substation in a residential neighborhood. The expansion required a variance, which the city of Kirkland granted. Neighbors, fearing the effects of the substation sued PSE, arguing, among other things, that the substation was a nuisance. The neighbors also sued the city, claiming inverse compensation. The trial court ruled in PSE's favor and dismissed the claim against the city, since its filing was beyond the date allowed under LUPA. On appeal, the court upheld the trial court's decisions regarding PSE. The court, however, concluded that LUPA did not control, since the lawsuit was based upon inverse condemnation, the issuance of a variance. Nevertheless, the court upheld the dismissal of the city, concluding that the city had no liability for inverse condemnation for its permitting decisions.

• Manna Funding v. Kittitas County, ___ Wn. App. ___ (02/28/2013) - LUPA, Zoning, Tortious interference, 1983

  Manna sought to rezone property. The county refused and Manna filed a LUPA appeal. The court sided with Manna and found that the county had not properly prepared findings and conclusions to support its decision. Once again the county failed to grant a rezone and once again Manna filed a LUPA appeal. The court concluded that Manna had satisfied the criteria necessary for a rezone and had not prepared adequate findings and conclusions; the court returned the case to the county for the issuance of a rezone. Thereafter Manna sued, arguing that it was entitled to damaged under RCW 64.40.020, 42 USC 1983, and tortious interference. On appeal, the court concluded that RCW 64.40.020 was not available, as the requested rezone was not a "permit application," as was required under the statute to prevail. A 1983 action was not available since there was no vested/constitutionally protected property right to the requested rezone. And there was no tortious interference since there was no specific development activity proposed.

• Eyman v. McGehee, ___ Wn. App. ___ (02/19/2013) - Initiative and Referendum

  After the City of Redmond provided for automatic traffic safety cameras, an initiative was filed with the city clerk seeking an initiative on such cameras. Since the supreme court had determined that initiatives on such issues was beyond the scope of the initiative power, the city clerk did not file the initiative petitions with the county auditor. The initiative proponents sued, seeking to require the clerk to transmit the petitions to the county. The court denied issuance of a writ of mandamus and the initiative proponents appealed. On appeal, the court affirmed. A city clerk has a mandatory duty under the statutes governing the filing of initiative petitions to transmit such petitions to the county auditor for determination of sufficiency. But, a court may review the substance of an initiative petition to determine whether it is valid. Such a determination is "exclusively a judicial function." Despite a city clerk's mandatory duty, however, a court may decline to grant a writ of mandamus if it determines that ordering compliance is a useless act because an initiative is invalid.

• Bartz v. Department of Corrections, ___ Wn. App. ___ (02/12/2013) - Public Records Act

  Bartz made three public records requests of the Department of Corrections. The department provided records, but Bartz was not satisfied with the response and sued. The decision is largely fact-specific, but it does offer some advice. The fact that the requesting party already has the records being requested does not relieve the government of its duty to provide the record. There is a one-year statute of limitations where the government provides records in a single installment. (Bartz had argued that there was no specific statute of limitation.)

• Jessee v. City Council of Dayton, ___ Wn. App. ___ (02/05/2013) - Tort liability

  Ms. Jessee tripped, fell, and injured herself on an old firehouse stairway. The stairway did not comply with current building codes -- the rise was too tall, the run was too small, and there was no handrail. However, the plaintiff commented on the specific shortcomings of the stairway before she climbed them. The court concluded that the plaintiff voluntarily assumed the risk of injury, and the city had no duty to protect her. The voluntary assumption of risk relieved the city of liability.

• Robb v. City of Seattle, 176 Wn.2d 427 (01/31/2013) - Tort liability

  While investigating a possible robbery, the police stopped a vehicle and questioned its driver and a companion. Prior to the questioning, the driver dropped some shotgun shells on the ground, which were observed by the police officers. Since there was no evidence supporting an arrest, the police left and thereafter the driver picked up the shotgun shells, later stopped a car, and killed the driver with a shotgun. The estate of the person who had been murdered sued, arguing that it was negligent for the officers to fail to retrieve the shotgun shells. The court held that the Restatement of Torts § 302B may create an independent duty to protect against the criminal acts of a third party where the actor's own affirmative act creates or exposes another to the recognizable high degree of risk of harm. However, the court further held in this instance the police officer's failure to pick up shotgun shells lying near defendants in a Terry stop was not an affirmative act as contemplated by the Restatement.

• Spokane County v. Eastern Washington Growth mangement Hearings Board, ___ Wn. App. ___ (01/31/2013) - GMA

  Opponents of an amendment to Spokane County's comprehensive plan argued that the prospect of future inadequate public facilities presented by the amendment created an immediate inconsistency with the comprehensive plan. Spokane County had relied on development regulations that would safeguard adequate facilities at the project approval stage. The court found that where an amendment to a comprehensive plan is otherwise consistent with plan goals and policies and the local government has protected against a prospect of future inadequate public facilities by enforceable ordinances or regulations requiring concurrency, there is no inconsistency that violates RCW 36.70A.070.

• Schlotfeldt v. Benton County, 172 Wn. App. 888 (01/22/2013) - Conditional Use Permit

  The appellant sought to construct an RV park on land zoned light industrial. While the zoning allowed RV parks, a condition use permit was required. The Board of Adjustment approved the issuance of a conditional use permit, but it imposed a condition that an RV's use of the park was limited to 180 days. Schlotfeldt appealed to the county and then to the court, arguing a variety of issues, including whether a time limitation could be imposed when not specifically provided for by the zoning code. The court of appeals concluded that such a limit could be imposed. Reasonably calculated conditions to protect adjacent land and to achieve legitimate zoning goals are permitted. The Board had inherent authority to impose conditions ensuring the use meets the county's zoning goals.

• State v. Velasquez, ___ Wn.2d ___ (01/17/2013) - Costs of deferred prosecution

  A person charged with a misdemeanor or gross misdemeanor may petition the court for deferred prosecution if the crime was the result of substance dependency or mental illness. After the defendant fulfills the statutory requirements, including completion of a treatment program, the judge may dismiss the charges. RCW 10.05.130 requires the appropriation of public funds "to provide investigation, examination, report and treatment plan for any indigent person who is unable to pay the cost of any program of treatment" within a deferred prosecution. Must public funds pay for the full course of treatment programs for such indigent defendants in deferred prosecutions or whether public funding is required only for a treatment plan document? The court held that "according to the plain and unambiguous language of RCW 10.05.130, the legislature did not intend to commit public funds for the full course of treatment programs for indigent defendants in deferred prosecutions."

• Town of Woodway v. Snohomish County and BSRE Point Wells, 172 Wn. App. 643 (01/07/2013) - GMA

  A large parcel of unincorporated land, formerly used for industrial purposes, was rezoned so that it could be used for residential and commercial uses. That decision was appealed to the Growth Management Hearings Board. Before the Board made its decision (comprehensive plan partially invalid under GMA and SEPA), the landowner applied for several development permits. Woodway and a citizen's group filed suit, seeking an injunction against the issuance of any permit and a finding that the project was not vested; the trial court issued an injunction and ruled that the project was not vested. Does a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Board's subsequent determination that the jurisdiction did not fully comply with SEPA's procedural requirements in its enactment of those plan provisions and regulations? On appeal, the court reversed, finding that, under GMA, a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Management Hearings Board's later determination that the local jurisdiction did not fully comply with SEPA procedural requirements in its enactment of those plan provisions and regulations. Because the landowner filed complete development permit applications before the Growth Board issued its final decision and order, those applications vested to County's urban center ordinances.

• Gallegos v. Freeman and Whatcom County, ___ Wn. App. ___ (01/07/2013) - Tort liability - Immunity

  Gallegos was believed to be suicidal. He was known to be possessing a gun and had violated a no contact order. Gallegos drove an automobile towards a sheriff deputy and was told to stop; he didn't. Once again Gallegos drove towards the deputy and the deputy shot him in the arm and hand. Gallegos was convicted of several offenses and thereafter sued the county and deputy for violating his constitutional rights by the use of excessive force. The trial court ultimately entered a summary judgment in the deputy's favor, citing qualified immunity. An appeal was brought and the trial court's judgment was affirmed. Qualified immunity shields a government official from liability for money damages in a lawsuit asserting the violation of a federal civil right unless the plaintiff pleads facts demonstrating that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. A right is "clearly established" only where existing precedent has resolved the statutory or constitutional question beyond debate. Gallegos failed to demonstrate that a reasonable police officer would understand that his or her use of force was claim of excessive force.

2012

• Skyline Contractors v. Spokane Housing Authority, ___ Wn. App. ___ (12/06/2012) - Public works contract - bids

  The Spokane Housing Authority awarded a public works contract to Skyline Contractors Inc. but then refused to execute its owner-contractor agreement with Skyline and withdrew acceptance of its bid after Skyline failed to produce documentation of its subcontractor arrangements. The parties disputed whether a contract arose from the award and whether Skyline can pursue a claim for monetary damages for its breach. On appeal the court held that contractual obligations arose when the housing authority conveyed its written award of the contract to Skyline. However, Skyline's exclusive remedy was to enjoin the housing authority's entry into an agreement with another bidder, a remedy it did not pursue. Damages are not available.

• Parker v. Wyman, ___ Wn.2d ___ (12/06/2012) - Qualification for superior court judge

  Christine Schaller, who has been admitted to practice law in Washington, has served as a Thurston County court commissioner since 2005. In 2012 she filed for the office of superior court judge in Thurston County. Ms. Schaller does not reside in Thurston County. A challenge was brought against her name being on the ballot under RCW 42.04.020, which requires a candidate for a county office to be an elector of such county. The superior court rejected the challenge and, on appeal, the supreme court affirmed. Under the state constitution, a person is eligible for the office of superior court judge if he or she has been admitted to practice before the courts of record in this State Wash. Const. Art. IV, § 17. That is the only requirement. Territorial and current statutes state that, to the contrary, there is no residency requirement for superior court judge, a position characterized as a state office. (Ms. Schaller was elected judge in November 2012.)

• Forbes v. City of Gold Bar, 171 Wn. App. 857 (11/13/2012) - Public Records Act

  Forbes sought numerous electronic records from the city. Given the volume of the requested records, other records that were being requested by others, the need to search private computers and electronic devices, the city was unable to provide the records as quickly as Ms. Forbes sought. She sued and the trial court ruled in the city's favor. On appeal, the court affirmed. The response to the request was reasonable in light of the difficulty the city had in retrieving the information and the efforts it expended to recover the information. The city conducted an extensive search of multiple sites where the records Forbes requested might be housed. This search was reasonably calculated to uncover all relevant documents. (The city hired a consultant to retrieve the requested information, it updated Ms. Forbes on the status of its response to her requests, it provided documents in batches as they became available.) It was not necessary to conduct an in camera review of personal emails or prepare an exemption log regarding such emails since they were personal, not public records.

• Munich v. Skagit Emergency Communication Center, 175 Wn.2d 871 (11/01/2012) - Public Duty Doctrine

  A neighbor shot at Munich, and Munich called 911. The 911 operator arranged for the dispatch of a deputy sheriff and advised Munich that an officer was on the way. Unfortunately, the neighbor continued to shoot at Munich, eventually killing him. Munich's estate sued, alleging that the county was negligent in responding to the incident. The county brought a motion for a summary judgment dismissal of the claims, arguing that under the public duty doctrine, it owed no legal duty to Munich, since the "special relationship" exception to the public duty doctrine did not apply because there was no express assurance of police assistance by the 911 operator and Munich did not rely on any express assurance to his detriment. The trial court ruled that a genuine issue of material fact existed on the issues of whether an express assurance was sought and given and whether Munich detrimentally relied on any such assurance. The county's argued that a plaintiff must prove that an express assurance was false or inaccurate to give rise to a duty of care. The Court of Appeals held that where the alleged express assurance involved a promise of future action, it is not required to show that the express assurance was false or inaccurate in order to establish the existence of a special relationship. On appeal the court affirmed, holding that where the express assurance promises action there is no falsity requirement because the assurances may be superficially correct but negligently fulfilled. The accuracy, or lack thereof, of an assurance has no bearing on the issue of whether an actionable duty was established.

• Ellensburg Cement Products v. Kittitas County, 171 Wn. App. 691 (10/30/2012) - SEPA

  Ellensburg Cement appealed the county's decision allowing a property owner to crush rock on property localed in an agriculture zone. Several issues were raised, including the use of a previously-prepared SEPA document and whether the county was required to hold an open record hearing on a SEPA appeal. The county argued that it could satisfy requirements through a closed record appeal and, in fact, it wasn't required to provide for a local appeal in any case. The court disagreed. While the county was not required to provide for a local appeal, if it provided for one, it could not preclude the opportunity for an open record hearing.

• In re Bond Issuance of Greater Wenatchee Reg'l Events Center, 175 Wn.2d 788 (10/25/2012) - Debt limitation

  The city of Wenatchee entered into a "contingent loan agreement" the Greater Wenatchee Regional Events Center Public Facilities District to help the District finance a regional events center. Did this contingent agreement cause the city to exceed its debt limit? The District argued that the CLA did not as it only created a "contingent" liability, triggered only if the district was unable to make payments on the District's bonds. The court, in a divided opinion, concluded that since the city was unconditionally obligated to service the district's debt if the district could not and because the risk of loss fell upon the city and its taxpayers, the obligation was essentially a guaranty. It created indebtedness within the meaning of the state constitution. The city could only enter into the agreement if approved by a vote of the people, but not without a popular vote.

• Koenig v. Thurston County, 175 Wn.2d 837 (09/27/2012) - Public Records Act

  Koenig sought various records associated with a voyeurism conviction, including a special sex offender sentencing alternative (SSOSA) report and a victim impact statement. The county argued that both were exempt under the investigative records exemption, RCW 42.56.240. On appeal, in a 5-4 decision, the court disagreed. To be exempt, the court held, a court must find that an investigative entity is compiling and using the relevant record to perform an investigative function. A victim impact statement is primarily a communication between a victim and a judge and the SSOSA evaluation principally provides a basis for the court to impose sentencing alternatives. Neither of these records is part of an investigation into criminal activity or an allegation of malfeasance. Because the Public Records Act requires that exemptions be narrowly construed, the court declined to protect documents that are created to aid a court in its sentencing decision. Neither record is an "investigative record."

• Clark County v. Rosemere Neighborhood Association, 170 Wn. App. 859 (09/25/2012) - Clean Water Act

  Pursuant to its authority under the federal Clean Water Act, the State Department of Ecology issued a permit to Clark County. A major component of the permit is a storm water flow control condition, which requires permittees to reduce storm water runoff from new development to the "historical" level at the site. Under the current permit, a permittee can adopt an alternative storm water flow control program if the alternative program provides "equal or similar" protection to that specified in the permit. To satisfy permit requirements, Clark County adopted ordinances which Ecology concluded were inadequate to meet permit requirements. The county and Ecology entered into an agreed order to bring the county into compliance. Rosemere challenged the county's permit before the Pollution Control Hearings Board, however, arguing that it was not adequate. The Board agreed, finding that it (1) allowed developments applied for between the permit's expected effective date and the agreed order's actual effective date to escape the flow control requirements and (2) did not meet the "equal or similar" standard required for alternative programs. The county appealed arguing that (1) the Board overstepped its authority; (2) the Board's decision will require the County to violate Washington's vesting law; (3) the Board failed to defer to Ecology's expertise on the "equal or similar" issue; and (4) lack of deference led to improper findings of fact. The court of appeals affirmed the Pollution Control Hearings Board, finding that the Board acted within its authority, the Board's decision did not violate Washington's vesting doctrine, and evidence supported the Board's decision that the County's alternative program did not afford the protection the permit requires. Other issues relating to constitutional takings and improper fees, the court found, were not ripe for review.

• Franklin County Sheriff's Office v. Parmalee, 175 Wn.2d 476 (09/20/2012) - Public Records Act

  Parmalee, a state prisoner, sought numerous records from the Sheriff's Office. Although the county provided some records, it denied others and sought an injunction against further release under RCW 42.56.540. The superior court ruled it could not consider a requester's identity and scheduled a permanent injunction hearing to determine whether the records were exempt from disclosure. Franklin County sought review of the trial court's ruling regarding identity. The court of appeals disagreed with the superior court and held that identity could be considered under RCW 42.56.540 because a superior court's injunctive powers are equitable; it also held that RCW 42.56.565(which allows denial of certain disclosure requests by prisoners), enacted while review was pending, was retroactive. On appeal, the supreme court concluded that the superior court should have first determined whether the requested records were exempt from disclosure. Without a determination regarding possible exemptions, no basis existed for the trial court to determine the additional "public interest" and "harm" findings necessary under RCW 42.56.540 for the exemption. It also was premature to decide if RCW 42.56.565 applies retroactively.

• Loeffelholz v. University of Washington, ___ Wn.2d ___ (09/13/2012) - Personnel, Discrimination

  The plaintiff's supervisor made comments to the plaintiff and thereafter took action (revoked flexible work schedule, denied overtime work, etc.) suggesting that there was discrimination due to sexual orientation, resulting in an alleged hostile work environment. However, the supervisor's initial comments were made before the state's discrimination laws were expanded to include discrimination based on sexual orientation. Can preamendment conduct be used to prove discrimination? No. The amendment prohibiting discrimination based on sexual orientation is not retroactive. However, the pre-amendment comments can be used to give context to any postamendment discriminatory conduct.

• Gorman v. City of Woodinville, 175 Wn.2d 68 (08/16/2012) - Adverse possession against government

  The city acquired a tract of land through dedication. However, Gorman argued that he had title to the property, having acquired the title through adverse possession before the city received the dedication. Does RCW 4.16.160 (which generally prohibits adverse possession against government owned property) bar a quiet title action where the claimant alleges he adversely possessed property belonging to a private individual before a municipality acquired record title to the land? The court held that it did not. The property passed to Gorman before the city acquired title. If a claimant satisfies the requirements of adverse possession while land is privately owned, the adverse possessor is automatically vested with title to the subject property. The prior owner cannot extinguish this title by transferring record title to the government.

• In re Recall of Ward, 175 Wn.2d 429 (08/09/2012) - Recall

  Citizens sought the recall of fire commissioner Ward for a variety of reasons. The superior court judge dismissed three reasons but found one, a violation of the Open Public Meetings Act, as being both factually and legally sufficient to proceed. On appeal the court concluded that the three dismissed reasons were factually sufficient (they identified to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office) but found that they were not legally sufficient (states with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.) The fourth reason alleged that the commissioner had falsified meeting minutes to indicate that an action occurred at an open meeting when, in fact, it had not; this, the court found was both factually and legally sufficient.

• Ferguson v. City of Dayton, 168 Wn. App. 591 (06/05/2012) - LUPA

  The city issued a building permit for the construction of a building adjacent to the plaintiff's home. The plaintiff took issue with a ruling regarding the height of the roof of the proposed building. The mayor, planning committee and staff reviewed the issue and determined that the code interpretation regarding the allowable roof height was correct. The plaintiff disagreed and filed a LUPA petition. The city countered, arguing that Ferguson had not exhausted her administrative remedies. However, it turned out that the city had no board of adjustment and the planning commission lacked jurisdiction to consider the code interpretation appeal. An appeal finally was held, but the decision was contrary to the interpretation by Ferguson. The plaintiff filed an amended LUPA petition, which the city argued was invalid as it had been filed more than 21 days after the building permit application had been approved. Although the city initially prevailed, on appeal the court reversed, finding that because there was an administrative review process created by the city, the building permit did not become final once a timely review was initiated. Only when that review concluded was there a "final determination" that meant that a "land use decision" existed that could be the subject of a LUPA petition.

• Freedom Foundation v. Department of Transportation, ___ Wn. App. ___ (05/10/2012) - Public Records Act

  Following a ferry boat accident, drug and alcohol tests were performed on the crew of the ferry. Although records were provided by the Foundation, the Department of Transportation (DOT) redacted the crew's drug and alcohol test results in compliance with a federal regulation, 49 C.F.R. § 40.321 (2006), directing marine employers to keep test results confidential, because that regulation qualifies as an "other statute" exemption under RCW 42.56.070(1). On appeal, the court agreed that the federal regulation was an "other statute" and that the redacted information was exempt.

• West v. Thurston County, 168 Wn. App. 162 (05/08/2012) - Public Records Act

  In a lawsuit, the county was represented by an attorney hired by the county's risk pool provider. Under the county's contract with the risk pool, the county paid the first $250,000 and the risk pool any additional amount. A public records request was made for all of the invoices for defense services associated with the lawsuit. The county did not provide invoices for the services paid for by the risk pool, as they did not pay them or have them. West sought all the invoices. On appeal, the court agreed with the county: the invoices for services over $250,000 were not public records, since they were not prepared by, owned by, used or retained by the county. The court agreed.

• Weaver v. Spokane County, 168 Wn. App. 127 (05/08/2012) - Public Duty Doctrine

  Weaver, who apparently was intoxicated, was found by a police officer to be walking along a snow-covered street, walking at times in the traveled-portion of the roadway. The officer found no law to be broken and directed Weaver to walk towards in-coming traffic out of the street. Weaver nevertheless walked in the street, was hit by a car, and later died. Weaver's estate sued for negligence, and the court determined that there was no liability due to the public duty doctrine. On review the Court affirmed, concluding that the officer did not have knowledge of a statutory violation and did not have a duty to act under RCW 70.96A.120(2). The failure to enforce exception did not apply. There likewise was no legislative intent to protect a particular group of people under chapter 70.96A RCW. No special relationship existed and the rescue doctrine did not apply.

• Department of Ecology v. City of Spokane Valley, 167 Wn. App. 952 (05/03/2012) - Shorelines Management Act Exemption

  A builder sought permits to construct up to 30 docks on a river to serve adjacent homes it was building for sale. The Shorelines Management Act exempts certain "substantial developments" from the permitting process, including "[c]onstruction of a dock . . . designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences" having a value, in the case of a freshwater dock, of less than ten thousand dollars. RCW 90.58.030(3)(e)(vii). Does the exemption apply to docks being built for "spec" homes intended for resale? No. The court held that the statutory exemption applies only when the owner, lessee, or contract purchaser requests the permit in order to undertake construction for its own noncommercial use.

• Coballes v. Spokane County, 167 Wn. App. 857 (04/26/2012) - Dangerous dog determination appeal

  After biting a child, Coballes's dog was determined to be a "dangerous dog." The determination was appealed to the county commissioners and a hearing held by a hearing examiner. Losing her appeal, Corballes appealed to the superior court and then to the court of appeals. The court of appeals concluded that a party appealing a dangerous dog declaration in superior court is not entitled to a second appeal as a matter of right in the court of appeals. However, the court granted leave to submit a motion for discretionary review by the court of appeals.

• City of Auburn v. Gauntt, 174 Wn.2d 321 (04/19/2012) - Court jurisdiction of misdemeanors

  Gauntt was arrested for a marijuana misdemeanor, charged with a violation of state law, and tried in municipal court. The city had not adopted its own marijuana ordinance nor had it adopted state law by reference. Gauntt argued that their city did not have the authority to prosecute him for violating statutes the city had not adopted and the supreme court agreed. The court rejected the city's argument that the legislature impliedly granted it authority to prosecute violations of state statutes. Instead, it found that RCW 39.34.180 confers upon a city of Auburn's size the fiscal responsibility for the costs of adult misdemeanor prosecutions within its jurisdiction. No statute confers authority upon a municipality to prosecute crimes based upon state statutes not adopted by the municipality

• Gendler v. Batiste, ___ Wn.2d ___ (04/12/2012) - Public records

  Gendler suffered a serious injury when his bike tire became stuck in a bridge grating, throwing him to the ground. Gendler sought accident reports relating to accidents at the same bridge location. The state refused to provide the records unless Gendler agreed not to use the records in a lawsuit against the state. Gendler sued, not agreeing to the state's terms. The state argued that under federal law it could not release the information, if it was gathered to help eliminate accidents. Gendler prevailed at trial and in the court of appeals; on appeal, the supreme court affirmed. The state patrol has an independent statutory duty under RCW 46.52.060 to "file, tabulate, and analyze" accident reports and to annually publish statistical information showing, among other things, the location of such accidents. The Public Records Act requires the state patrol to disclose all public records upon request, including data from accident reports collected pursuant to its statutory duty. The federal statute cited that a prohibition is inapplicable to the state patrol in this context because it collected and compiled the reports pursuant to RCW 46.52.060, and not for a federal accident prevention purpose.

• Catsiff v. McCarty and the City of Walla Walla, ___ Wn. App. ___ (04/12/2012) - Sign control

  Signs for a toy store were painted on the wall of a building that exceeded the city's height and area regulations for signs in the downtown area. The owner challenged the city's regulations, arguing that they violated certain constitutional prohibitions. On appeal, the court upheld the city's regulations, finding that the regulations were content neutral, reasonable, and satisfied a legitimate reasonable interest. The sign regulations were neither overbroad nor vague and they were not a prior restraint.

• Merlino Construction v. City of Seattle, 167 Wn. App. 609 (04/09/2012) - Workers' compensation

  An off-duty police officer was injured while directing traffic at a construction site. For workers' compensation purposes, who was in charge of the employee? The court reviewed various factors considering who was in control of the officer and whether the officer consented. Most factors favored the construction company being in control and that the officer had consented to the work. The court determined that the officer, when he was injured, was employed by the construction company, not the city.

• Mukilteo Citizens for Simple Government v. City of Mukilteo, 174 Wn.2d 41 (03/08/2012) - Power of Initiative/Red-light Cameras

  Following adoption of an ordinance providing for the installation of red light (traffic safety) cameras and authorizing the entry into a contract for the cameras, an initiative petition was filed seeking to forbid cameras unless approved by the voters, limit fines, repeal the ordinance, and require any future use of an automated traffic safety device be submitted to a vote of the people. Thereafter the city council rescinded its authorization of the use of the camera but submitted the initiative to the county for a vote. A citizens' group (Mukilteo Citizens) filed a lawsuit arguing that the issue was not eligible for an inititiative. The superior court ruled that the preelection lawsuit challenging the initiative was premature; that decision was appealed to the supreme court. A divided court (5 to 4) held that because the legislature expressly granted authority to the governing body of the city of Mukilteo to enact ordinances on the use of automated traffic safety cameras, the subject matter of the initiative is not within the initiative power. The court also reviewed whether Mukilteo Citizens had standing and whether the initiative was an initiative or otherwise an advisory ballot. The dissent argued that the issue was moot and should not be reviewed by the court.

• Stafne v. Snohomish County, 174 Wn.2d 24 (03/08/2012) - Amendment of Comprehensive Plan

  Having been denied a request to the county for an amendment of the comprehensive plan to redesignate his property (the issue was not placed upon the county's final docket for consideration of comprehensive plan amendments). Stafne appealed the decision to the superior court, not the growth management hearings board. Superior court dismissed the appeal and, on appeal to the court of appeals, the court concluded that an appeal to the hearings board would have been futile, but neverless rejected the appeal on other grounds. Upon further appeal, the supreme court held that decisions related to amendment of comprehensive plans must be appealed to the growth board under the procedures provided for in the Growth Management Act, and that failure to do so precludes superior court review. The court also held that a constitutional writ and declaratory relief were unavailable.

• Germeau v. Mason County, 166 Wn. App. 789 (02/28/2012) - Public disclosure

  Following an off-duty altercation, the county began an investigation regarding a deputy sheriff. The deputy's union representative (Germeau) sought information from the county regarding the investigation. Some information that was sought was not provided and, the representative filed a lawsuit under the Public Records Act. The trial court entered a summary judgment in the county's favor, concluding that Germeau did not have standing to bring the lawsuit and concluding that, even if there was standing, the request for information did not give the county fair notice that it was a public records request. On appeal, the court concluded that Germeau did have standing; nevertheless, it concluded that the county had not been given fair notice. Nothing in Germeau's letter put the county on notice that he was requesting records under the PRA; instead, his letter appeared to request documents and ongoing information in connection with the Sheriff's Office's investigation.

• Lord v. Pierce County, ___ Wn. App. ___ (02/28/2012) - Permitting

  Following a flood, Lord constructed a levee on his property to help prevent future flooding. Lord, however, did not obtain a permit for the construction. The county ordered that the construction cease; Lord appealed, the cease and desist order was upheld, and Lord appealed again to the court of appeals. The central issue before the court was whether the common enemy doctrine (landowners may dispose of unwanted surface waters in any way they see fit, without liability for resulting damage to neighboring properties) justified Lord's actions in building the unpermitted earthen levee. The court concluded that the common enemy doctrine serves only as a defense to liability for damaging adjacent properties and did not relieve Lord from the requirement of obtaining a permit.
  

• Jones v. Town of Hunts Point, ___ Wn. App. ___ (02/27/2012) - Subdivisions

  A property owner sought to divide a single lot into two parcels. However, language shown on the face of a 1951 plat prohibited any division that would result in a lot with less area than that approved by the plat. The owner argued that the plat language was a private covenant that the town should not enforce. The court disagreed, concluding that the town was correct to enforce the restriction as it was part of the final plat. Jones also argued that since the plat was over 60 years old, the restriction no longer applied. The court concluded that the seven year rule was not a statute of limitations; the restriction still applied. Jones argued that the restriction merely prohibited him from selling or reselling the altered lots; the court disagreed, indicating that that would be an absurd result. Other procedural issues were resolved in the town's favor.

• Cary v. Mason County, 173 Wn.2d 697 (02/16/2012) - Tax for conservation districts

  Counties are authorized by RCW 89.08.400 to impose special assessments to fund activities in conservation districts. Mason County did, imposing an assessment of $5 per parcel plus $0.00 per acre. This assessment was challenged both as an unconstitutional tax and as a violation of the state statute. The court first concluded that it had jurisdiction to consider the challenge. RCW 89.08.400(3) authorizes an assessment; "[a]n annual assessment rate shall be stated as either uniform annual per acre amount, or an annual flat rate per parcel plus a uniform annual rate per acre amount." Without addressing any constitutional argument, the court concluded that the "per acre" amount had to be a positive amount, consistent with the benefit received, not $0.00 per acre. Accordingly, the court held that the assessment was invalid, as it was inconsistent with authorizing state law.

• Cradduck v. Yakima County, 166 Wn. App. 435 (02/02/2012) - Police power/flood control

  The plaintiff owns a mobile home park located near a river. Following several serious floods, FEMA updated its floodplain maps and, subsequently, by using the maps the county adopted an ordinance placing the area that included the mobile home park in a designated flood plain. One mobile home space became vacant and a new owner sought to locate a different mobile home on a new foundation in the park. The county refused to issue a permit, since a county ordinance prohibited new construction in a flood plain. Cradduck sued, alleging that the ordinance amounted to a regulatory taking and violated her substantive due process rights. Superior court overturned the county's denial of a permit and an appeal was filed. The court of appeals held that the county's ordinance met state standards and did not violate substantive due process. The county ordinance was aimed at achieving a legitimate public purpose, it used means that were reasonably necessary to achieve the purpose and the regulations were not unduly oppressive on the land owner.

• Yu v. Rosema, 166 Wn. App. 293 (01/30/2012) - Land use/nonconforming use

  Yu purchased property that was located in a single-family zone, but once was used as a duplex as a nonconforming use. A neighbor challenged a ruling that permitted the use to continue. Although once used as a duplex, for some time the house was used as a single family home. Nevertheless, a basement maintained a kitchen, the owner had two electricity meters, and solid waste service was that used for a duplex. The court found that since the party challenging the use has the burden to prove a change, and given the fact that the house retained a separate kitchen and had multifamily services, the nonconforming use remained.

• City of Tacoma v. City of Bonney Lake, 173 Wn.2d 584 (01/26/2012) - Water franchises/fire hydrants

  Under franchises entered into with Bonney Lake, as well as other cities, the City of Tacoma water utility agreed to provide water service to the cities in return for access to rights-of-way. For years Tacoma provided fire hydrant services to the cities and billed water customers for the availability of the hydrants; however, after Lane v. Seattle Tacoma stopped charging customers for the hydrant service, sent bills for the hydrant costs to the cities, and argued that it was not responsible for the hydrants. The trial court ruled in the cities' favor and Tacoma appealed. Reviewing the franchise agreements and applying "course of dealings" rules, the court concluded that "water service" included fire hydrant services. The court further noted that for years Tacoma had provided hydrant service; it only changed its approach after the Lane decision. Answering whether the state accountancy act, RCW 43.09.210, required the cities to pay Tacoma for hydrant service, the court concluded that Tacoma had agreed to provide the service in return for access to rights-of-way, which was the city's consideration. Other issues relating to indemnification were addressed in the decision.

• Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, ___ Wn. App. ___ (01/26/2012) - GMA

  Olympic Stewardship Foundation challenges the county's vegetation regulations applicable to rivers that are subject to channel migration, arguing that the regulations violated the Growth Management Act's "best available science" requirement; RCW 82.02.020's and/or the Fifth Amendment's "constitutional nexus and rough proportionality" requirements and the legislature's 2010 amendment to RCW 36.70A.480 invalidates the county's nonconforming use regulation for critical areas. The court held that there was no duty on a county to describe each step of the deliberative process that links the science that it considers to the adopted policy or regulation, rather, the county must address on the record the relevant sources of best available scientific information included in the decision-making. As to the argument that the county's regulation was invalid because it violated the nexus and rough proportionality tests, the court found that by applying best available science and limiting the requirements to high risk critical areas, the regulations were reasonably necessary as a direct result of the proposed developments. The court also rejected the argument that the regulation violated RCW 82.02.020. The court rejected the argument that the county's regulation was invalidated by 2010 legislation since the administrative record had not been developed.

• Applewood Estates v. City of Richland, ___ Wn. App. ___ (01/26/2012)- LUPA

  The city approved a change to a proposed project which the city indicated was "minor." Neighbors were not immediately aware of the change in plans; when they learned of it, they considered it major and filed a LUPA action with the court, four months after the original written decision was entered. The court concluded that the neighbors did not need to receive personal service and since more than 21 days had elapsed after the written decision, the LUPA action was time barred.

2011

• Bd Lawson Partners v. Central Puget Sound Growth Management Hearings Board, 165 Wn. App. 677 (12/27/2011) - Growth Management/Zoning

  The City of Black Diamond adopted a new comprehensive plan in 2009, as well as development regulations relating to master plan developments. The city's actions were not appealed. Subsequently, a developer submitted applications for two master plan developments, and the city adopted ordinances approving the applications. These ordinances were appealed to the Growth Management Hearings Board which determined that the ordinances were subarea plans or development regulations, that it had jurisdiction over the MPD ordinances, and that the city's approval process did not properly follow its adopted public participation procedures for GMA amendments. The Board's decision was appealed and the court of appeals concluded that the city's approvals were for development permits, rather than development regulations. Accordingly, the Growth Management Hearings Board did not have jurisdiction over the ordinances.

• Laurer v. Pierce County, 173 Wn. 2d 242 (12/15/2011) - Vesting

  An application for a building permit was filed in 2004. The application, however, contained some misrepresentations of fact. Subsequently county requirements for buffers near streams were increased. Later, when considering an application, a challenge was brought as the proposal would infringe within the (then-increased) setbacks. The court concluded that the project was not vested since a permit application that is not allowed under the regulations in place at the time it is submitted and is issued under a knowing misrepresentation or omission of material fact confers no rights upon the applicant.

• Downey v. Pierce County, 165 Wn. App. 152 (11/29/2011) - Animal control/due process

  After a small dog was attacked by another dog and required euthanization, an investigation suggested that the Downey's dog was responsible for the attack. The county declared Downey's dog as "dangerous." Downey sought a hearing and, under the county code, had to post a fee of $50 for an informal hearing before the auditor. The auditor upheld the dangerous determination and Downey, after posting an additional $500 fee, had a hearing before a hearing examiner. The hearing examiner also upheld the determination, and Downey appealed arguing, among other things, that the required fee deprived her of due process and that the level of proof required to find the dog dangerous was inadequate. The court agreed. Requiring a fee for the first evidentiary hearing deprived Downey of due process. The same was true as to the $500 fee, since the hearing before the auditor had no record that could be reviewed on appeal. The required proof, essentially a finding of probable cause, was inadequate; it may have been enough for the initial action, but it was inadequate for the making of a final determination. The court determined that the county needed to prove its case by a preponderance of evidence.

• Parmelee v. Mathieu, ___ Wn. App. ___ (11/09/2011) - Public disclosure

  Parmelee, a prisoner, was enjoined from inspecting, copying and receiving public records. He nevertheless sought the payment of penalties because the documents he requested were not provided. The court concluded that if the plaintiff was not entitled to obtain the records, he could not be awarded penalties when he failed to receive the documents.

• Thun v. City of Bonney Lake, 164 Wn. App. 755 (11/08/2011) - Land use/takings

  After the city had rezoned part of the property owned by Thun, property for which more development was envisioned than was possible under the new zoning, Thun sued, seeking damages under inverse condemnation. Superior court dismissed the suit and, on appeal, the court affirmed, concluding that the issue was not "ripe." The court rejected the rule that partial takings plaintiffs must show denial of "all reasonable beneficial use" of their land to demonstrate ripeness. Rather, the court found that when there is some uncertainty as to the effect of the challenged regulations, a takings claim is unripe and the plaintiff must allow the government to reach a final decision regarding how said regulations apply. And when there is no uncertainty about how the challenged regulations apply, further administrative proceedings are futile and the claim is ripe.

• Chan v. City of Seattle, 164 Wn. App. 549 (10/31/2011) [Gun control/preemption] The mayor announced a rule prohibiting the carrying of guns in city parks, once signage was provided. A suit was brought and the rule was found to be preempted by state law. On appeal, the court of appeals affirmed, finding that under the plain language of RCW 9.41.290 and RCW 9.41.300, the city's attempt to regulate the possession of firearms at designated park areas and park facilities open to the public by adopting the Firearms Rule was preempted. Except as expressly authorized by the legislature, municipalities are prohibited from regulating the possession of firearms at city-owned park facilities open to the public.

• State v. Immelt, ___ Wn.2d ___ (10/27/2011) - Noise ordinance/Constitutional law

  Immelt, apparently angry at a neighbor who had filed a report regarding the keeping of chickens, repeatedly honked a car horn in front of her neighbor's house in the early morning. After being warned to stop by the police, she again honked her horn and was arrested. Immelt was charged with making a public nuisance noise, public disturbance noise, "[t]he sounding of vehicle horns for purposes other than public safety." Immelt was convicted and her conviction was upheld on appeal. She again appealed and argued that the noise ordinance was unconstitutional. The court agreed, concluding that it did not need to decide whether Immelt's particular conduct would constitute protected speech and holding that [f]or purposes of this overbreadth challenge, the ordinance under which Immelt was convicted sweeps too broadly in banning protected forms of expressive conduct involving horn honking.

• City of Seattle v. Sisley, ___ Wn. App. ___ (10/10/2011) - Municipal court civil jurisdiction

  The city filed an action against the Sisleys, alleging violations of the city's housing code. The municipal court found that the code had been violated and imposed penalties of $247,00 and $368,000. The Sisleys appealed to superior court, arguing that the municipal court only had civil jurisdiction up to $75,000, similar to that possessed by district courts. The city appealed and the court of appeals reversed, noting that the grant of civil jurisdiction to the municipal court, unlike that of the district court, has no monetary limitation on civil cases filed with the court under the court's original jurisdiction.

• Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702 (09/29/2011) - Public records disclosure

  The Alliance sought records from the county that would help explain certain hiring decisions. The county provided some records, including a seating chart that existed on a computer. The county, however, did not seach an earlier computer for the record, and subsequently that chart that was on that computer was erased. The Alliance sued and, after review by the court of appeals, asked the supreme court to define the scope of discovery allowed in Public Records Act (PRA) provoked lawsuits, and what constitutes an adequate search. The court held that discovery in a PRA case is the same as in any other civil action and is therefore governed only by relevancy considerations. The court adopted Freedom of Information Act (FOIA) standards of reasonableness regarding an adequate search. An inadequate search may be considered an aggravating factor in calculating daily penalties. And, finally, since the harm was done at the time the record's request was made by the Alliance and refused, it may be entitled to recover costs and fees if the agency wrongfully failed to disclose documents in response to its request.

• Sargent v. Seattle Police Department, 167 Wn. App. 1 (09/19/2011) - Public records disclosure

  A citizen who was arrested following an altercation with an off-duty police officer sought various records relating to the incident. Some of the records were initially withheld, as there was an on-going investigation. Later, after the last witness had been interviewed, the police reports were submitted to the prosecutor. The prosecutor, however, later sought additional information. Among the issues reviewed by the court were whether the police have a continuing obligation to provide the requested records after the initial exempting situation ceases? No; there is no standing request. Interview of the last witness does not necessarily remove the investigation exemption, as additional information could later be sought, as was true in this case. Withholding of identification information requires justification that disclosure would "endanger any person's life, physical safety, or property." Before metadata can be required for disclosure, the disclosure request must also include a request for the metadata.

• ICAN v. Western Washington Growth Management Hearings Board and Jefferson County, ___ Wn. App. ___ (09/07/2011) - Growth Management

  Among other issues, the court held that the growth management hearings board has authority to apply the doctrines of res judicata and collateral estoppel in its consideration of GMA appeals. The growth boards have authority "to do everything lawful and necessary" to resolve GMA petitions expeditiously and efficiently. Because the power to dismiss successive petitions raising the same claims and issues, or claims that could have been raised in a prior action, is necessary for expeditious and efficient disposition of GMA petitions, we hold that the growth boards have implied authority to apply res judicata and collateral estoppel.

• Mitchell v. Department of Corrections, ___ Wn. App. ___ (09/07/2011)- Public Records Disclosure

  A prisoner, Mitchell, requested records that were held in electronic form and asked that they be sent to him electronically by email. The department advised that the records contained information that would need to be redacted, could not be provided electronically, and thus asked that the prisoner have the records either mailed to him or reviewed by someone acting on his behalf. Mitchell sued, arguing that no exemption statement had been provided, and that the records should be provided electonically. The trial court denied Mitchell's demands, and Mitchell appealled. The court disagreed with the department's argument that it had not denied the records request. The court held that the department was required to provide an exemption report when it failed to provide the requested documents, but it agreed that the records are not required to be provided electronically.

• American Traffic Solutions v. City of Bellingham, 163 Wn. App. 427 (09/06/2011) - Initiatives and red-light cameras

  Is the subject of whether a city can install red light cameras to assist in traffic control an appropriate subject for an initiative? It is not. The authority to provide for red-light cameras is vested with "the appropriate local legislative authority," that is, in this instance, the city council. Subjecting the issue to an initiative would usurp the council's authority and is not allowed.

• State v. Eriksen, ___ Wn.2d ___ (09/01/2011) - Indian law, fresh pursuit

  A non-Indian driver was observed driving erratically within Indian reservation boundaries. A tribal police officer pursued the driver, ultimately stopping her outside the reservation. Do tribal officers have authority to stop non-Indians outside the reservation boundaries? On appeal the supreme court responded: An Indian nations's inherent sovereign powers do not include the authority to stop and detain outside the tribe's territorial jurisdiction for a traffic infraction. This opinion reverses the holding set out in earlier 2010 decision on the same case.

• Puget Sound Energy v. City of Bellingham, 163 Wn. App. 329 (08/29/2011) - B & O taxation

  The court determined that the city's business and occupation tax should apply to all income of the utility, not only the amount associated with the sale of energy. Also, the tax applies to the utility's revenue that includes payment of local taxes by the utility.

• West v. Department of Natural Resources, ___ Wn. App. ___ (08/23/2011) - Public Records Act

  West requested numerous records concerning the department's chief financial officer, including emails. The department made its initial response eleven days after the request. Some of the emails had been lost due to a change in equipment. The department spent considerable time and expense seeking to recover the emails, but the effort ultimately proved futile. West sued. The response was due within five business days. While the response may have been reasonable, it was not timely, since it was given after eleven days. Five days means five days. There was no suggestion that the department intentionally destroyed the records, and it was shown that substantial effort was made to recover them. There was no liability associated with the lost records. The plaintiff also argued improper withholding based on attorney-client privilege; the court ruled against this argument.

• Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (08/18/2011) - Public records disclosure

  After being stopped by a Bainbridge Island police officer, a driver alleged that she had been choked and sexually assaulted by the officer. Mercer Island and Puyallup police departments investigated the incident and issued reports; the incident was found to be “unsubstantiated” and no charges were brought against the police officer. One of the reports was released, a news account published, and then, in response to other public records requests for the reports, an injunction was sought and granted. On appeal, in a divided decision, the court’s lead opinion found that the officer’s initial failure to object to the report’s release did not constitute a waiver from later objecting, under privacy grounds, to other records’ requests. The court concluded that the reports were “personal information” and that the right to privacy had not been lost due to the initial release. The decision found that the release of the officer’s identity would be highly offensive; however, release of the reports, with identity information redacted, would satisfy a legitimate public concern. Also, under an argument relating to the criminal records privacy act, the court found that hold that RCW 10.97.080 requires redaction of only criminal history record information and does not exempt information relating to the conduct of the police during the investigation.

• Dolan v. King County, 172 Wn.2d 299 (08/18/2011) - Retirement benefits for public defenders

  The county provides constitutionally-required legal defense by contracting with nonprofit organizations for defense services. The county monitors the contracts and has exerted control to assure qualify representation of the poor. Does the county’s control entitle the defender organizations to be covered by the state PERS retirement system? Yes. Employees of the defender entities have become “arms” of the county and are "employees" under RCW 41.40.010(12), entitled to be enrolled in the PERS.

• Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wn.2d 384 (08/18/2011) - Shorelines management

  Citizens alleged that fees and exactions under shoreline management regulations constituted taxes and fees on development in violation of RCW 82.02.020. The superior court dismissed the claim, and the court of appeals upheld the exactions. The supreme court affirms. By its terms, RCW 82.02.020 applies to land use regulations and conditions imposed by local jurisdictions. While local jurisdictions play a role in tailoring shoreline master plans to local conditions, the Shoreline Management Act dictates that the Department of Ecology retains control over the final contents and approval of SMPs. Therefore, SMP regulations are the product of state action and are not subject to RCW 82.02.020.

• Regan v. McClachlan, 163 Wn. App. 171 (08/16/2011) - Legal immunity

  A court clerk, following a court order, improperly returned bail money. Among other things, the court advised that under the judicial immunity doctrine, judges are absolutely immune from civil damage suits for acts performed within their judicial capacity. Quasi-judicial immunity "attaches to persons or entities who perform functions that are so comparable to those performed by judges that it is felt they should share the judge's absolute immunity while carrying out those functions." To determine if immunity applies, we look to the function being performed rather than the person who performed it. Quasi-judicial immunity protects a court clerk from liability when the clerk is acting as an "arm of the court" and performing court-ordered functions. Conversely, the court clerk is not protected from liability when performing ministerial functions because a ministerial act is not a judicial act. Here, since the clerk was following a court order, there was immunity.

• Mellish v. Frog Mountain Pet Care, ___ Wn.2d ___ (07/28/2011) - LUPA

  Mellish filed an appeal of a hearing examiner's land use decision within 21 days of the hearing examiner's denial on a motion to reconsider, but not within 21 days of the hearing examiner's initial decision. Was the LUPA appeal timely? It was. The date of the decision on the motion for reconsideration is the date that starts the LUPA clock. This issue has now been addressed by the state legislature (which adopted legislation establishing the date of the reconsideration decision as the final determination date for purposes of LUPA.)

• Kittitas County v. Eastern Washington Growth Management Hearings Board, 172 Wn.2d 144 (07/28/2011) - GMA

  Challenges were brought against the county's amendments to its comprehensive plan and development code, arguing that they failed to meet the requirements of GMA. For the most part, the court affirmed the decisions of the Hearings Board. The court concluded, among other things, that while boards must consider anecdotal evidence provided by counties and defer to local planning decisions as between different planning choices that are compliant with the GMA, counties may not point to any evidence and demand unbounded deference. The court reaffirmed that questions of appropriate rural densities are fact specific to local communities and that boards may not rely on bright line rules regarding density. However, the hearings board and the court found that the county failed to develop a written record explaining its consideration of local circumstances in planning its rural element. The court indicated that while deference to local government determinations regarding hat measures will best protect rural character, plans must actually include such measures. The court found that there was substantial evidence in the record that nothing in the plan directly and prospectively assures a variety of rural densities.

• City of Bothell v. Barnhardt, 172 Wn.2d 223 (07/28/2011) - Criminal trials/juries

  Bothell includes areas from both Snohomish and King counties. Barnhardt was charged with a crime based upon events that took place in Snohomish County. However, at trial, the jurors who considered the case came from both King and Snohomish Counties. The court found that the jury panel violated Barnhart's article I, section 22 rights when, over Barnhart's objection, the jury panel included King County jurors for a crime alleged to have occurred in Snohomish County. Because RCW 2.36.050 provides that courts of limited jurisdiction may select jurors from the area served by the court, it is unconstitutional to the extent that multicounty cities, such as Bothell, apply it to select jurors from counties other than where the crime is alleged to have been committed. Material departure from statutory jury selection requirements is presumptively prejudicial and requires reversal and remand for a new trial.

• Zink v. City of Mesa, 162 Wn. App. 688 (07/28/2011) - Public records disclosure

  The Zinks requested numerous records from the city. The city, while satisfying some of the requests, was nevertheless slow in providing others and for various reasons failed to provide some altogether. The Zinks brought a lawsuit. On many of the issues, the Zinks prevailed and the court determined penalties for the city’s failure to follow the public records act. The Zinks objected to the manner the court determined the penalties and the number of days for which penalties applied. The court, on appeal, returned the case to superior court for recalculation of the penalties owed, requiring use of the Yousoufian [v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010)] factors. The decision reviews each of the situations for which penalties were or should have been assessed.

• In re Limited Tax General Obligation Bonds of the City of Edmonds, 162 Wn. App. 513 (07/05/2011) - Legality of bonds to fund public/private cable system

  The City of Edmonds authorized the issuance of $4.2 million in taxpayer bonds to extend and complete its fiber optic network in order to convert to a wireless water meter system, as well as provide broadband access to police, fire, and other public institutions. The court concluded that because the issuance of the bonds was primarily for a public purpose, the city had the authority to allow private individuals and nongovernmental organizations to use the current excess capacity of its high-speed broadband network. The decision to issue the taxpayer bonds did not violate article VII, section 1 of the Washington State Constitution and was not an unconstitutional gift of funds or lending of credit in violation of article VIII, section 7.

• Franklin County Sheriff's Office v. Parmelee, 162 Wn. App. 289 (06/21/2011) - Public records

  A prisoner sought numerous records. The trial court, under RCW 42.56.540, granted a preliminary injunction to halt the release of the records. In reaching its decision the court refused to review the status of the record requestor. The county appealed. The court, on appeal, concluded that while the local government could not consider the identity of the requesting party, the court could. It further concluded that RCW 42.56.565, which sets out procedures for consideration of records' requests by prisoners, adopted in 2009, should be applied retroactively.

• Phoenix Development v. City of Woodville, 171 Wn.2d 820 (06/16/2011) - Land use/planning

  A developer sought to rezone land he owned to allow for the construction of more houses than permitted under the current R-1 zoning. Although staff's recommendation was generally favorable, and the hearing examiner recommended approval of the request, the city council denied the rezone, finding that there was not a need for the additional housing, infrastructure was not adequate, and the proposal was not consistent with the city's comprehensive plan. On appeal to the supreme court, the court upheld the city's decision, finding that substantial evidence in the record supported the city's decision. Courts defer to local government decisions under the laws and rules applicable to such decisions. The city is not required to rezone to R-4 in every case where adequate services can be provided, and it did not err when it concluded that the proposed rezones are inconsistent with its own comprehensive plan.

• In re Recall of Heiberg, 171 Wn.2d 771 (06/09/2011) - Recall of elected official

  On appeal to the supreme court, the court upheld the city's decision. A petition seeking recall of the mayor, setting out 11 grounds of misconduct, was filed and considered by the superior court. The court dismissed nine of the rounds but found two legally and factually sufficient. The court's decision was appealed to the supreme court, which reversed the trial court's decision. One of the counts involved the purchase of a truck by the mayor without council approval. The Court concluded that this was a mistake, and one the mayor rectified by seeking council approval and, when that approval was not forthcoming, reimbursed the city for the expense. This was a simple mistake; there was no showing of an intent to violate the law, thus the charge was factually insufficient. The second charge involved the alleged destruction of a resolution that had been requested under a public records request. There was no showing that the mayor either destroyed or authorized the destruction of the document.

• Chelan County v. Chelan County Sheriff's Association, 162 Wn. App. 176 (06/02/2011) - Labor dispute

  A deputy sheriff who had been terminated filed a grievance, seeking reinstatement. Following mediation, the parties tentatively (by a handwritten memo) agreed to resolve the dispute by signing a memorandum of understanding. The county commissioners later signed a prepared written memorandum that was prepared following the oral agreement, but the sheriff's association refused to do so, based upon some comments that had been made by the sheriff to a local radio station. The county sued to enforce the agreement. The superior court concluded that it had jurisdiction to decide the issue and held that the initial memorandum did not rise to the level to be enforceable. On appeal, the court concluded the legal effect of the initial agreement was an issue to be determined through arbitration, as provided for by the collective bargaining agreement.

• Graham Neighborhood Association v. F.G. Associates, ___ Wn. App. ___ (05/31/2011) - Land Use

  Where a county ordinance mandates that land use permit applications not timely acted upon be , and such an application is pursuant to that ordinance, the county planning agency lacks the authority to thereafter reinstate that application in contravention of the pertinent ordinance. Such is consistent with the state's vesting statute, which confers upon the local legislative authority the ability to set forth requirements for project permit applications. It is consistent with principles of administrative law requiring notice and public hearing prior to decision-making.

• Hoppe v. King County, 162 Wn. App. 40 (05/23/2011) - Public records disclosure

  Hoppe requested the King County Assessor to disclose the Department of Revenue's tax ratio audits. (A "ratio audit" is used to assess real and personal property value in each of Washington's 39 counties, and compares each county's valuation against a total valuation of property in the state. These ratio audits are used to equalize property taxes yearly, and are also used to calculate each county's state school levy.) The county denied the request, maintaining that a statute provided a specific exemption from disclosure. On appeal the court agreed with the county, finding that RCW 42.56.230 (information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would: (a) be prohibited to such or (b) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer)provided the exemption. The court concluded that the release of the information would put the companies that provided the information at a competitive disadvantage and that this could not be cured by merely redacting the names of the taxpayers. Other procedural issues were resolved.

• Pierce v. Yakima County, 161 Wn. App. 791 (05/12/2011) - Public duty doctrine

  Pierce had a propane tank and tubing installed outside of a house. The county inspected the work and gave its approval. After connecting the piping to an internal system, due to a defect in the attic, the propane exploded, destroying the house and injuring Pierce. Pierce sued arguing negligence. On appeal the court refuted Pierce's contentions that the "special relationship" and "failure to enforce" exceptions to the public duty doctrine applied. The court disagreed. The building code did not provide a specific directive to the governmental employee as to what should be done; it merely vested discretion in the inspector in this situation. There was no special relationship since Pierce did not ask about the internal piping system, and the county did not inspect that system.

• Hans Vogel v. City of Richland, ___ Wn. App. ___ (05/12/2011) - LUPA

  Council approved some staff-approved changes to a plat without notice or public hearing. An appeal was brought but more than 21 days following the initial council approval. Is a land use decision made on the basis of an oral request, to which there is an oral response, "issued" under the LUPA as soon as there is some reference to it in a public meeting or public record? The court construed "issuance" under the LUPA to require more than a mere reference; there must be a memorialization sufficient to identify the scope and terms of the decision.

• Whatcom County Fire District No. 21 v. Whatcom County, 171 Wn.2d 421 (05/05/2011) - Comprehensive plan/concurrency

  A county development regulation prohibits approval of certain land use activities without a letter from the provider of fire protection (and other) services ensuring that adequate capacity does or will exist to maintain an appropriate level of service upon completion of the proposed development. The Fire District, upon determining that such capacity would not exist upon completion of the proposed developments, did not issue such a letter. Nevertheless, the county approved three projects. The County committed clear error by finding its development regulation was satisfied.

• McMilian v. King County, 161 Wn. App. 581 (05/02/2011) - Land use/nonconforming uses

  McMilian owned adjacent parcels of property. A wrecking yard was established on the northern parcel, prior to the current zoning. Some of the activity from the northern parcel "bulged" onto the southern parcel; the owner wanted to maintain that activity. Valid nonconforming uses of land are permitted where those uses were lawfully established prior to the adoption of contrary zoning legislation. The requirement that the use be lawfully established is not limited to compliance with zoning legislation but, rather, also demands compliance with general statutory requirements. Although such nonconforming uses are disfavored, they are permitted to continue in order to avoid constitutional due process concerns arising from interference with a landowner's property rights. Such constitutional concerns do not arise, however, where a trespasser establishes the use. The court held that a trespasser onto land cannot lawfully establish a valid nonconforming use. The court, however, returned the issue to the hearing examiner to determine whether a valid nonconforming use existed.

• Fishburn v. Pierce County Planning and Land Services, 161 Wn. App. 452 (04/26/2011) - Tort liability/public duty doctrine

  Property purchased by Fishburn was plagued with drainage problems and the failing of a never-operating septic system. Ultimately, the Fishburns were required to vacate their property because of the problems. They sued, arguing that the county had committed gross negligence, negligence, nuisance, and RCW 64.40.02010 violations. The trial court entered a summary judgement for the county, concluding that there was no liability due to the public duty doctrine. On appeal, the court affirmed. Fishburn failed to show that legislation protected a specific group of people; there was no failure to enforce exception to the doctrine, since enforcement was discretionary; and no special relationship was shown.

• Clallam County v. Western Washington Growth Management Hearings Board, 161 Wn. App. 366 (04/20/2011) - Growth Management

  For its update of the county comprehensive plan, the county adopted a resolution advising that the then current plan remained compliant. An appeal was brought. The court of appeals returned the plan to the hearings board for a factual determination on whether the State provided funding for a relevant GMA amendment, which would make the amendment enforceable. Enforceability of this GMA amendment is a condition precedent to establishing the Growth Board's jurisdiction to review the county's unamended capital facilities plan.

• Clark County v. Western Washington Growth Management Hearings Board, 161 Wn. App. 204 (04/13/2011) - GMA

  A challenge was brought against the county's determination that certain agricultural properties were no longer agricultural lands of long-term commercial significance. The county declassified the lands and then placed them within the urban growth areas of several cities. After appeals were made to the growth management hearings board and superior court, an appeal was brought to the court of appeals. The court concluded, among other thingss, that the county GMA planning decisions were not final when they were appealed and have an unresolved legal status. The court also found that the county's legislative body and the Growth Board can take actions that affect issues currently pending for review in the appellate court, its actions may moot issues pending review. In reaching its decision, the court denied the argument that the Growth Board is compelled to consider only the portion of the evidentiary record highlighted by the county and is precluded from considering the entire evidentiary record as inconsistent with the concept of appellate review. The Growth Board has both the duty and the authority to review a county's reasons supporting its decisions to determine if whether a county followed the GMA and whether a county's decisions are consistent with the GMA's goals and objectives.

• City of Kent v. Mann, 161 Wn. App.126 (04/11/2011) - Traffic/Vehicle impoundment

  Mann was stopped by city police after it was discovered that his license was suspended. The police impounded Mann's vehicle and ordered an impound for 30 days, as was required by ordinance. Mann appealed, arguing that the impound order failed to consider discretion in setting the impound at 30 days. On appeal, the court held that discretion was shown in the decision to appeal or not, and the required 30-day impound period was consistent with the local ordinance and state law.

• Munich v. Skagit Emergency Communications Center,___ Wn. App. ___ (04/11/2011) - Public Duty Doctrine

  After calling for emergency assurance and being told that an officer was on the way, the complaining party was shot and killed. His estate filed a suit, alleging negligence. The county responded, citing the Public Duty Doctrine. On appeal the court concluded that the element of the doctrine requiring that an express assurance be given by the public official does not need to be false or inaccurate.

• City of Lakewood v. Koenig, 160 Wn. App. 883 (03/29/2011) - Public records disclosure

  Koenig sought various records regarding three city police officers. While the city provided the requested records, it redacted information regarding drivers license numbers. The city asked whether its provision of documents was sufficient; no response was given. The city then filed an action for declaratory action on the issue whether it had fully complied with Koenig's request. As part of its lawsuit, the city, using civil court rules, sought information regarding Koenig through interrogatories (litigation Koenig had been involved in) and a request to supply documents (favorable settlements of litigation). Koenig objected, indicating that the requests had nothing to do with whether the city had complied with his records' requests. The trial court ordered Koenig to respond and Koenig appealed. On appeal, the court held that the city could use civil rules for discovery, but it concluded the interrogatory and request for production at issue were not reasonably calculated to lead to the discovery of admissible evidence. The court denied attorney fees for Koenig since he did not substantially prevail and because no court has found that the City violated the Public Records Act.

• Gorman v. City of Woodinville, 160 Wn. App. 759 (03/21/2011) - Adverse possession

  The city purchased land for street right-of-way. Gorman, however, filed a quiet title action, arguing that he had acquired an easement through adverse possession prior to the city's acquisition of the property. The city argued that Gorman's claim was barred by RCW 4.16.160, which provides that "no claim of right predicated upon the lapse of time shall ever be asserted against the state." The trial court agreed and dismissed; on appeal, however, the court of appeals reversed. If the 10-year statute of limitations has run while the property was in private hands, a quiet title action is not barred by RCW 4.16.160.

• Brotherton v. Jefferson County, 160 Wn. App. 699 (03/15/2011) - LUPA

  The Brothertons sought a sewer waiver so that they could park a recreational vehicle on their lot and make use of its holding tank when the RV was used. The county denied the request, indicating that there were other ways to dispose of sewage, such as expansion of the on-site system. The county health department confirmed its denial in May 2009, and the Brothertons filed suit in August 2009. Superior court granted a summary judgment for the county concluding that the appeal was untimely; on appeal, the court affirmed. The county's denial of the sewage holding tank was a "land use decision" as it related to the enforcement of ordinances regulating the use of real property. Thus, the Brothertons would have had to bring an appeal within 21 days of the final decision; they did not, and thus their appeal was barred.

• City of Auburn v. Gaunt, 160 Wn. App. 567 (03/14/2011) [Criminal law] When a crime adopted under state law has not been expressly adopted by city code, or incorporated in the city code by reference to state statute, and no other state statute confers authority to prosecute that misdemeanor in municipal court, the city lacks authority to prosecute it in the municipal court.

• Kapo v. Central Puget Sound Growth Management Hearings Board, ___ Wn. App. ___ (03/09/2011) - GMA/Shorelines. Management

  In 2010 the Legislature adopted legislation clarifying that the Growth Management Act was to regulate critical areas until such time as Shorelines Management Act plans were updated. Here the court ruled that the new legislation should be applied ents be applied retroactively. The court rejected arguments about whether retroactive application was called for (the legislation was clear), whether the legislation violated separation of powers (the supreme court's earlier decision on the issue was evenly divided; there was no majority), there were no vested rights, the bill was not ex post facto, as not criminal sanction was considered. Other issues were decided in the non-published portion of the opinion.

• Spokane v. Eastern Washington Growth Management Hearing Board, ___ Wn. App. ___ (03/08/2011) - Comprehensive plan amendment/jurisdiction of Hearing Board

  Does a growth management hearing board have jurisdiction to consider whether a site specific amendment to the county comprehensive plan? Yes, it does, site specific or not.

• City of Seattle v. IAFF, 160 Wn. App. 382 (03/06/2011) - Grievance arbitration

  The city disciplined a union member, and her union then filed a grievance. In preparation for defending against the grievance, the city interviewed other union employees regarding their knowledge of the incident leading to the discipline. The union objected to the questioning and filed an unfair labor practice charge against the city. Following dismissal of the union's charge by a hearing examiner and review by PERC and superior court, the issue was appealed. On appeal the court concluded that an NLRB decision, Johnsons Poultry [prohibits an employer subject to federal labor laws from interviewing a bargaining unit member employee in preparation for an unfair labor practices proceeding without telling the employee the nature of the questioning and informing the employee that participation is voluntary and will not result in any reprisal], did not apply, and that the city had failed to provide adequate information associated with its denial of information to a union request. Before the Johnie's Poultry will apply, questioning must concern a protected, union-related activity. The protected right, however, is the right to pursue a grievance. Here those questioned were themselves not pursuing a grievance, and thus were not exercising a protected right. Also, the questioning must occur in preparation for an employer's defense against an unfair labor practices complaint, and the court found that the union failed to justify an extension of the federal rule before interviewing employees to prepare for a disciplinary grievance arbitration. The court also decided that the City violated its duty to adequately explain why it denied the Union's request for information.

• Davidson Serles and Associates v. City of Kirkland, 159 Wn. App. 616 (01/24/2011) - Land Use/SEPA

  Davidson challenged comprehensive plan and development regulations in superior court. The Court approved dismissal of the challenges since the growth management hearings board has exclusive jurisdiction over such appeals. Davidson also challenged the dismissal of its appeal of the city's design guidelines; the court affirmed the trial court's decision since the design guidelines were development regulations that would need to be appealed to the growth management hearings board, Davidson also challenged as inadequate the EIS issued on the city's planned action ordinance. However, such an ordinances does not require a threshold determination or an EIS. Since no EIS was required, an inadequate EIS could not be the basis for a challenge. Davidson also challenged, on constitutional grounds, a spot zoning issue; the hearings board, however, cannot entertain challenges to challenges to the comprehensive plan and development regulations based on constitutional grounds.

• Lamtec v. Department of Revenue, ___ Wn.2d ___ (01/20/2011) - Taxation

  Lamtec sold goods within the state, but it did not have any facilities in this state or a local workforce. The state required Lamtec to pay state business and occupation taxes. Although Lamtec paid the tax, it sought a refund, claiming that there was no nexus. The supreme court disagreed. While several requirements must be met under the commerce clause before a state may levy such a tax on an out-of-state business, including a showing of a substantial nexus between the taxing state and the activity taxed, Lamtec satisfied the requirement by regularly sending sales representatives into the state to maintain its market.

• Gronquist v. Department Of Corrections, ___ Wn. App. ___ (01/20/2011) - Public disclosure

  State prison inmates sought to review various records; they did not ask for copies. Prison policies restricted access to some records and, in other instances, the prison required payment before the inmate could be given copies. The inmates appealed. The court, however, recognized that prison inmates do not possess the same rights as do the general public. The prison may adopt reasonable rules to enable it to carry out its responsibilities and help assure safety for the prison and the public. The court upheld the prison's rules.

• Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775 (01/13/2011) - Public disclosure; disclosure of court records

  A newspaper sought documents from the court and county regarding attorney costs associated with the defense of two indigent murder defendants. (One of the defendants plead guilty; the other was tried and found guilty and that conviction was appealed.) Having been initially denied the requested records, the newspaper appealed. On appeal the Court affirmed long standing case law and held that the documents prepared by court personnel in connection with court cases and maintained by the court were judicial documents governed by GR 15. It also held that such documents, when transferred to nonjudicial county entities, are governed by the Public Records Act unless they are subject to an additional protective order. The Court held that a trial court has jurisdiction to consider a motion to unseal court documents and is not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will not impact a separate decision on appeal, and that a limited intervention by a third party in a criminal case is a proper procedure after trial has ended. The Court remanded the case to the trial court to determine whether continued sealing of these financial documents is proper pursuant to GR 15(e), given the current posture of the criminal case.

• Kapo v. Central Puget Sound Growth Management Hearings Board, 159 Wn. App. 270 (01/04/2011) - Growth Management/Shorelines Management

  Following 2010 legislation [Chapter 107, Laws of 2010] that applied retroactively, the court held that Growth Management Act was to regulate critical areas until such time as Shoreline Management Act plans were updated. In reaching its decision, the court concluded that separation of powers did not apply, since the state supreme court had not adopted a majority opinion on the issue. Also, vesting was not violated, since the legislation specifically provided for vesting. The 2010 legislation was not a prohibited ex post facto law, since the act was civil, not criminal. It also did not invalidate existing critical area ordinances.

2010

• Gregoire v. City of Oak Harbor, 170 Wn.2d 628 (12/02/2010) - Tort

  Gregoire was arrested an taken to jail. After he was arrested, he struggled, kicked, asked to be shout, and attempted to run away. After he was initially restrained, he was allowed to sit in a jail cell. Soon thereafter, however, he hung himself, using a sheet. Gregoire’s estate sued the city and individual officers. While the jury found the city negligent, apparently after review of certain jury instructions, it concluded that there was no liability due to assumption of risk and contributory negligence. On appeal, a divided court reversed, finding that the trial court erred “by instructing the jury on contributory negligence because the injury-producing act - here, the suicide - is the very condition for which the duty is imposed. The jail's duty to protect inmates includes protection from self-inflicted harm and, in that light, contributory negligence has no place in such a scheme.” Furthermore, in an opinion representing the thoughts of four justices, the court found that for “Oak Harbor to invoke assumption of risk effectively eviscerated the city's duty to protect inmates in its custody. The jail cannot cast off the very duty with which it is charged through a violation of that duty.”

• Gendler v. Batiste, ___ Wn. App. ___ (11/24/2010) - Public records

  Gendler was seriously injured when a bicycle he was riding had its wheel get stuck in a bridge grating. He sought accident reports from the State Patrol relating to bicycle accidents that had previously occurred on the bridge. The records are provided to the state department of transportation to enable it to make safety changes. The state patrol argued the records, under the "Federal Highway Safety Act," 23 U.S.C. § 409, were privileged such that it need not provide these records. The trial court disagreed and, on appeal, the decision was affirmed. While the records may be exempt by federal law under the department of transportation's responsibilities to improve safety, the state patrol has a duty, independent of WSDOT's federal obligations, to collect data and publish reports "showing the number of accidents, the location, the frequency, . . . and the circumstances thereof." The records should have been provided.

• Skagit County Public Hospital District No. 2 v. State Department of Revenue, ___ Wn. App. ___ (11/9/2010) - State B and O tax

  Are amounts received by the hospital from Medicare beneficiaries and Medigap providers for deductibles and co-payments subject to state business and occupation tax? Yes, the court concluded, they are. And the doctrine of sovereign immunity did not relieve the hospital district from having to pay interest on the amount of tax owed, since the district was operating in an administrative capacity.

• Spokane v. Miotke, ___ Wn. App. ___ (10/12/2010) - Growth management

  The county expanded an urban growth area, this action was challenged and the Growth Management Hearings Board agreed that proper review was not conducted for the expansion. The county adopted a resolution, reverting the urban growth area to its earlier boundaries, and the hearings board concluded that the earlier challenge was moot. However, Miotke brought a second challenge, arguing that proper procedures were not followed in the county's adoption of the resolution that reversed the earlier expansion. The superior court denied the second appeal, reasoning that the issue had already been decided and res judicata now applied; on appeal, the court of appeals agreed.

• O'Neill v. City of Shoreline, 170 Wn.2d 138 (10/07/2010) - Public records

  Is the metadata (data about electronic data) subject to disclosure? On appeal, the supreme court has determined that such data is subject to disclosure. The court, in a divided opinion (5 to 4), concluded that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure subject to disclosure. The court also determined that the city should inspect a councilmember's hard drive for the metadata to determine whether it had provided the requested information when it had provided a paper copy as well as other information associated with the the inquirer's request. The case was returned to the trial court to determine whether the city had violated the state's public records disclosure requirements.

• City of Aberdeen v. Regan, 170 Wn.2d 103 (09/30/2010) - Criminal law/revocation of probation

  Regan was convicted of a crime and sentenced to jail, with a large portion of the jail sentence suspended on condition that he have having "[n]o criminal violations of law or alcohol related infractions." He later was arrested on a criminal charge, was tried, and was found not guilty. The city, however, revoked a portion of his previous sentence, providing for jail time to be served. May the suspension of a jail sentence be revoked if the defendant is found not guilty of the latter crime? A majority of the supreme court concluded "Yes:" "We conclude that a probation condition that reads "[n]o criminal violations of law" unambiguously restricts a probationer from engaging in conduct that is proscribed by the criminal law. Because the trial court was reasonably satisfied that Regan had committed a crime despite Regan's acquittal at trial, the trial court was authorized to revoke the suspension of Regan's sentence.

• City of Port Angeles v. Our Water-Our Choice, 170 Wn.2d 1 (09/23/2010)

  After the city had determined to fluoridate the water provided by its water utility, an attempt was made by fluoride opponents to overturn the decision through the filing of two initiatives. The city declined to adopt the legislation proposed by the initiatives (prohibit the adding of fluoride) and sought a court order declaring the initiatives invalid as they interfered with an administrative action given by the state to city (and not to the people). A majority of the Court (5-4) concluded that the decision to fluoridate was administrative and thus beyond the power of initiative. The council's decision "explicitly [sought] to administer the details of the existing water system."

• Sanders v. State, ___ Wn.2d ___ (09/16/2010) - Public records disclosure

  Supreme Court Justice Sanders faced possible disciplinary action following a visit he made to a state prison.. The Justice looked to the Attorney General's Office (AGO) for a defense and then later sought records from the State Attorney General's office relating to the disciplinary action. Numerous issues are addressed in the (unanimous) Court's decision. Perhaps the most relevant portion of the decision, however, relates to how an agency responds to a request. If an agency determines that a particular record is exempt, it must not only cite the exemption, it must provide an explanation an exemption applies to the record withheld. Failure to provide an explanation can/will result in an additional penalty to the penalty assessed for improperly withholding a record. As to a majority of the issues raised, the supreme court upheld the decisions of the the trial court.

• Fitzpatrick v. Okanogan County, 169 Wn.2d 598 (09/02/2010) - Inverse Condemnation

  Claim against a government entity for property damage allegedly caused by a public flood control project. The supreme court affirmed the Court of Appeals, Fitzpatrick v. Okanogan County, 164 Wn.2d 1008 (2008), concluding that the common enemy doctrine does not bar inverse condemnation claims for damage to property caused by water flowing through a natural watercourse. Because there are genuine issues of material fact as to whether the water that washed away the owners' property was water in a natural watercourse or surface water and whether the damage to the owners' property was a necessary incident to the County and State's work on the dike, the trial court erred in granting summary judgment.

• Parmelee v. Mathieu, ___ Wn. App. ___ (07/29/2010) - Public records

  Parmelee, a prison inmate, sought a variety of records relating to department of corrections personnel. It was thought that the purpose of the requests was to develop fliers and other materials used to harass the corrections employees. When superior court enjoined the release of many of the records, Parmelee appealed. On appeal the court held that, despite obvious and repeated abuses, prison inmates have standing to request records under the public records act. Although at the time Parmelee filed his records' requests the trial court could not consider Parmelee's intent when determining whether a document was subject to disclosure; the trial court could not consider Parmelee's explicit and volunteered threats in deciding whether to grant the government employee's request for an injunction to protect the individual rights of the government employees. The court further held that the trial court erred when it determined that certain personnel records, intelligence and investigation reports, and portions of compensation records and training records were exempt from disclosure, although remand was necessary to allow the trial court to review the documents in camera to determine whether Parmelee was entitled to them. The court also held that while ordinarily a superior court cannot consider a requestor's intent when determining whether an injunction is appropriate, corrections' employees have the right to seek an injunction to protect their individual privacy rights when faced with an explicit and volunteered threat.

• G-P Gypsum v. Department of Revenue, ___ Wn.2d ___ (07/29/2010) - Taxation of natural gas

  Gypsum purchased natural gas for use in the city of Tacoma for the production of wallboard. The gas was purchased from distributors outside the city, and Gypsum took dominion and control over the gas at two locations, also out of the city. The gas itself, though, was used within the city limits of Tacoma. The city taxed the use of natural gas, and, for a time, Gypsum paid, but later requested a refund, arguing that under a referenced definition of "use," it used the gas when it obtained dominion and control of it outside the city. On appeal to the supreme court, the court disagreed, finding that the referenced definition did not apply to the local tax and that the normal definition of "use" did. SInce Gypsum used the natural gas within the city, it was subject to the local tax on the gas.

• Deer Creek Developers v. Spokane County, 157 Wn. App. 1 (07/22/2010) - Land use/vesting

  The developer submitted a SEPA checklist and a unified site plan for a project to be built in two phases. However, building permits were only sought for phase I. Thereafter the county changed the zoning for the subject area, and the new zoning did not allow additional residential development in the area. The developer sought a conditional use permit to allow development of phase II and was denied. The developer argued that the full project was vested and that vesting rules should be expanded. On appeal from denial, the court disagreed. The developer had not made an application for a project permit for phase II, and no building permit had been submitted for the development prior to the zone change. The project was not vested. A conditional use permit was also properly denied due to potential problems that could affect public safety and health.

• The Suquamish Tribe v. Central Puget Sound Growth Management Hearings Board, 156 Wn. App. 743 (07/07/2010) - Growth Management

  The court reversed decisions of the Growth Management Hearings Board, finding that the Board erred when it used bright line rules to find that the reduced urban density, the land capacity analysis, and the Rural Wooded Incentive Program's rural density component complied with the GMA. It also held that substantial evidence did not support the Board's decision that the existing design standards protected rural character. And it held that the Board did not decide all of the relevant issues.

• City of Bothell v. Barhhart, 156 Wn. App. 531 (06/28/2010) - Criminal law/jury trial

  Barhart was charged with a crime that was committed in the City of Bothell. He asked for a jury trial. Bothell is located in two counties, and persons from both of the counties were selected to serve on the jury. Barnhart appealed his conviction, arguing that he was entitled to a jury made up entirely of citizens from the county in which the alleged offense occurred. On appeal, the court agreed and overturned the conviction, citing Pursuant to article I, section 22 of the Washington Constitution, which provides that a defendant has the right to be tried by a "jury of the county in which the offense is charged to have been committed."

• City of East Wenatchee v. Douglas County, 156 Wn. App. 523 (06/22/2010) - Responsibility for jail costs of juveniles

  Douglas County once allowed and paid for the temporary confinement of juveniles at a Chelan jail facility. However, Douglas County joined with others for use of a juvenile facility in Medical Lake, 158 miles from East Wenatchee. Thereafter the county required cities to transport juvenile arrestees to the Medical Lake facility; the Chelan County facility was about 3 miles distance from East Wenatchee. East Wenatchee sued, arguing that the county either had to pay for the temporary housing of juveniles at the nearby Chelan County facility, or otherwise pay for the transport to the Medical Lake facility. The trial court ruled in the county's favor and, on appeal, the court of appeals affirmed. The court found that "East Wenatchee is located in Douglas County and has access to a juvenile facility where it does not have to pay booking or detention fees. Douglas County has provided what it is statutorily required to provide. If East Wenatchee elects to use an out-of-county facility, Douglas County is not financially responsible for the costs."

• Tobin v. Worden, ___ Wn. App. ___ (06/21/2010) - Public disclosure

  The Tobins requested copies of two letters. One was provided, although in a redacted form, and the other was not, as it had been lost in the copying process. More than a year later, the Tobins brought a lawsuit under the Publlic Records Act. The trial court ruled against the Tobins due to the failure to take action within one-year. On appeal, the court reversed, finding that the county did not claim an exemption for the requested records, nor did it produce a record on a partial or installment basis; it simply provided a single requested document with redactions and failed to provide at all another requested document. Thus, the one-year statute of limitations was never triggered and the trial court erred by dismissing the claims as time barred.

• Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn. App. 393, (06/01/2010) - LUPA

  A city allowed a church to locate temporary housing for homeless people through its council's approval of a temporary use permit. A local citizens group appealed the decision requesting, among other things, damages. The appeal was broupght more than 21 days after the city council approved the use agreement. The trial court dismissed the appeal under LUPA, as it was filed more than 21 days following the council's decision. On appeal, the court affirmed, concluding that the issuance of a use permit was a land use decision and holding that by the citizsen's group's failure to appeal within 21 days, the lawsuit, including the request for damages, was precluded and the appeal was properly dismissed.

• Stafne v. Snohomish County, 156 Wn. App. 667 (05/24/2010) - Growth Management Hearings Board-Jurisdiction-Failure to Exhaust Administrative Remedies

  A property owner sought review of a county council's decision to reject a proposed zoning designation amendment to county's comprehensive plan during annual review of the comprehensive plan. The county argued that the property owner should have exhausted his administrative remedies by filing an appeal with the growth management hearings board. On appeal, the court affirmed dismissal, and ruled that the growth management hearings board does not have jurisdiction to decide an appeal challenging a refusal to consider a proposed docketing amendment under RCW 36.70A.130.

• Burt v. Department of Corrections, ___ Wn.2d ___ (05/13/2010) - Public disclosure

  A state prisoner sought information regarding certain employees from the Department of Corrections. The Department notified the affected employees, and the employees obtained an injunction prohibiting the release of the requested documents. The prisoner argues that he should have been joined as a party in the lawsuit that sought the injunction. A divided supreme court agreed, finding that the requesting party was necessary to protect his interests and advocate for the release of the documents. (The Department did not object to the injunction sought by its employees.)

• Skinner v. Civil Service Commission, 168 Wn.2d 845 (05/31/2010) - Civil service

  Skinner was terminated from his city police department position. He appealed to the civil service commission; the commission upheld the termination, and Skinner asked the commission to reconsider. The commission affirmed its decision and Skinner appealed to superior court, filing notice of his appeal more than 30 days following the commission's first decision. The city and commission argued that the appeal was not timely, since it was filed more than 30 days following the commission's initial decision. Skinner argued that the motion to reconsidered tolled the running of the 30-day appeal period. The court of appeals and the supreme court agreed with Skinner. Also, the Court concluded that Skinner's service on the city clerk substantially complied with service requirements since the commission listed its address at city hall, and there were no commission employees at city hall when the service was made.

• Kitsap County Prosecuting Attorney’s Guild v. Kitsap County, 156 Wn. App. 110 (05/11/2010) - Public Disclosure

  A newspaper sought information about county employees, including town of residence. The county provided most of the information, but indicated that it would notify its employees about the request for town of residence information, allowing them to seek an injunction. The county set a date for its response to the paper, but it did not provide the information by that date. Subsequently the employees filed a court action to block release of the information; this effort was ultimately denied. The newspaper sued the county for its failure to supply the requested information. The trial court the trial court found that the County was liable for attorney fees, costs, and penalties. The County argued that because it exercised good faith, the trial court erred when it imposed attorney fees and penalties. On appeal, the Court disagreed. The County requested a reasonable amount of time to determine whether the requested information was disclosable, but it did not make its decision by that date. Although there was no injunction, the County failed to provide the requested information in an attempt to avoid paying fees and fines until the trial court ruled on the legality of disclosure. A request for an injunction is not the same thing as an injunction; the county was required to provide the requested information in a timely manner and it did not.

• Citizens for Rational Shoreline Planning v. Whatcom County, 155 Wn. App. 937 (05/10/2010) - Shorelines Management

  The county, as required by state law, updated its shorelines' management plan. Following review by the state Department of Ecology "DOE"), the county incorporated changes either required or suggested by DOE and its plan was approved by DOE. Among the approved plan's requirements were requirements for buffers and for limits on the buildable area of non-conforming lots. A citizens group sued, arguing that the new requirements were in violation of RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development. The superior court dismissed the suit and, on appeal, the Court of Appeals affirmed. RCW 82.02.020 does not apply since there is a pervasive and necessary involvement of the state, through the Department of Ecology, in the development, review, and approval of the shoreline master plan.

• Bradburn v. North Central Regional Library District, ___ Wn.2d ___ (05/06/2010) - Filtering internet for libraries

  May a public library filter Internet access for all patrons without disabling the filter to allow access to websites containing constitutionally-protected speech upon the request of an adult library patron? Yes. A public library has never been required to include all constitutionally protected speech in its collection and has traditionally had the authority, for example, to legitimately decline to include adult-oriented material such as pornography in its collection. This same discretion continues to exist with respect to Internet materials. Claims of overbreadth, prior restraint, and that the district's Internet filtering policy is an impermissible content-based restriction all fail to account for this traditional and long-standing discretion to select what materials will be included in a public library's collection. The Court concluded that, based on the factual record presented, the filtering policy suffered from none of the constitutional infirmities under article I, section 5 claimed by the plaintiffs.

• City of Seattle v. Seattle Public Safety Commission, 155 Wn. App.878 (05/03/2010) - Civil Service

  A police officer was suspended for 30 days. Upon appeal, the civil service commission, applying a "just cause" standard, reduced the length of the suspension. The city appealed, arguing that the commission should have used a "good faith for cause" standard. The Court of Appeals affirms. The essential question, the court stated, was whether, in an area where the legislative bodies have not defined their terms, the body appointed to administer the statute has discretion to do so. The court detrmined that the commission did and, so long as its determination was reasonable, the court could not say that adoption of the stricter test is not reasonable.

• Advocates for Responsible Government v. Western Washington Growth Management Hearings Board, ___ Wn. App. ___ (04/27/2010) - Standing to appeal

  John Diehl, president of Advocates, challenged two ordinances adopted by the county and later appealed the county's actions to the Growth Management Hearings Board. Did he have standing? Since Diehl was not an attorney, he could not argue the appeal on behalf of Advocates before the court. Since he had acted solely as president of Advocates before the county, he could not appeal on his own behalf, as he did not have participation standing.

• West v. Stahley, 155 Wn. App. 691 (04/27/2010) [Exhaustion of administrative remedied] Although there was an MDNS appeal still pending, the City (Olympia) issued an engineering permit, allowing the applicant to proceed "at risk." The permit was issued September 5. West had actual notice on October 10. He filed an appeal with the hearing examiner on October 30. Since he failed to appeal within 14 days of notice, his LUPAappeal was not timely and his appeal to superior court was dismissed because he failed to exhaust his administrative remedies.

• Lawson v. City of Pasco, 168 Wn.2d 675 (04/15/2010) - Code enforcement/land use regulation

  Lawson allowed recreational vehicles to park in his residential mobile home park, contrary to city ordinance. Lawson was issued a violation notice and was ordered to remove them from his park. Lawson admitted to being in violation of the city ordinance, but maintained that state law -- the Manufactured/Mobile Home Landlord- Tenant Act, ch. 59.20 RCW -- preempted the city ordinance because the state law authorizes, if not requires, recreational vehicles used as a primary residence to be allowed in mobile home parks. A divided supreme court affirmed a decision of the Court of Appeals, a decision that upheld the city ordinance. While the state legislature intended to act in the field of regulating mobile home park landlord-tenant relationships, it did not wholly preempted local action in this field. The legislature expressly conferred concurrent jurisdiction to local municipalities in the field of regulating landlord-tenant compliance with ordinances; the state act did not preempt the local ordinance. The court also found that the ordinance's operation did not conflict with the state law; each could operate distinctly without inconsistency. The ordinance was not unconstitutional. (Subsequent to the initial trial on this matter, state law was changed; the city would not now be able to prohibit the RV from the mobile home park.)

• Koenig v. Thurston County, 155 Wn. App. 398 (04/06/2010) - Public disclosure

  A divided court held that certain documents held by the prosecuting attorney's office could be released: Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure, although information identifying the victim and certain third parties (other victims named in the evaluation, and, where appropriate, the victims' family members, friends, innocent bystanders and any other non-expert or non-law enforcement witness) can be redacted; victim impact statements are exempt under the investigative record exemption.

• Renner v. City of Marysville, 168 Wn.2d 540 (04/01/2010) - Tort claims statute

  Renner was terminated from his employment with the City of Marysville; he filed a claim with the City and then sued for damages. Renner's claim failed to list the specific amount of damages that were sought, although it provided a general description, and only listed his address for two months, rather than for six months. The city sought dismissal of the lawsuit due to the deficiencies in the claim that had been filed. While the superior court did dismiss the lawsuit, the court or appeals reversed, as did the supreme court, finding that there had been substantial compliance and that the claims statute requires that there be liberal construction such that substantial compliance is satisfactory.

• Yousoufian v. Office of Ron Sims, ___ Wn.2d ___ (03/25/2010) - Public disclosure - penalties

  Another case involving the county's failure or delay in providing public records. The trial court assessed a $15/day penalty; Yousoufian appealed. While the supreme court did set the penalty to be imposed, $45 per day, it also indicated that setting the penalty would not normally be a function of an appellate court. For future cases, the court set out the following factors to help determine the penalty that should be imposed: "In our view, mitigating factors that may serve to decrease the penalty are (1) a lack of clarity in the PRA request, (2) the agency's prompt response or legitimate follow-up inquiry for clarification,1 (3) the agency's good faith,11 honest, timely, and strict compliance with all PRA procedural requirements and exceptions, (4) proper training and supervision of the agency's personnel, (5) the reasonableness of any explanation for noncompliance by the agency, (6) the helpfulness of the agency to the requestor,12 and (7) the existence of agency systems to track and retrieve public records. Conversely, aggravating factors that may support increasing the penalty are (1) a delayed response by the agency, especially in circumstances making time of the essence,13 (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions, (3) lack of proper training and supervision of the agency's personnel, (4) unreasonableness of any explanation for noncompliance by the agency, (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency, (6) agency dishonesty, (7) the public importance of the issue to which the request is related, where the importance was foreseeable to the agency,14 (8) any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency, and (9) a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case."

• Pierce County v. Corey, 154 Wn. App. 752 (01/25/2010) - Personnel/tort

  Corey resigned her position with the Pierce County Prosecuting Attorney's office after being advised that she would be terminated. She sued, alleging that, among other things, her termination violated a promise that she was only terminable "for cause." She also alleged defamation, negligent dissemination of unsubstantiated information, outrage, and false light. While Corey's position would have been "at will," the court concluded that due to promises that had been made to her at the inception of the employment relationship, she could estop the prosecutor from terminating her at will.. The court also held that there was no tort for the "negligent dissemination of unsubstantiated information" since, while the information would have been "private" under the public disclosure laws, tort law did not recognize a cause of action for the dissemination of confidential information. The court upheld torts for outrage and false light finding that Corey had shown that the employer had told a newspaper that she was under investigation for criminal behavior despite knowledge that an internal investigation revealed little of substance.

• Kelly v. Chelan County, 167 Wn.2d 867 (01/07/2010) - LUPA

  A conditional use permit, conditioned upon a requirement that all permits be obtained within two years, was appealed to superior court. The court reversed the hearing examiners decision, terminating the permit. The court's decision was appealed, but no stay was requested to stop the running of the two-year period to obtain the required permits. Since more than two years had lapsed, it was argued that the permit conditions were not met. On appeal the Court held that when a trial court denies a permit previously granted by a hearing examiner, that permit's time limit is terminated unless the permit is reinstated on appeal.

2009

• Lallas v. Skagit County, ___ Wn.2d___ (12/31/2009) - Tort/judicial immunity

  A deputy sheriff was summoned by a judge to escort a person to jail. The prisoner, who was uncuffed, broke free and ran. A private security guard, Lallas, blocked the prisoner's path, was struck by the fleeing prisoner, and was injured. Lallas brought suit against the county, but the county was granted a summary judgment, the court concluding that the deputy sheriff was protected by judicial immunity. The court found that escorting a prisoner to jail is not a judicial function; the deputy was engaging in a ministerial function; judicial immunity did not apply. Judicial immunity even extends to those engaging in judicial conduct under color of judicial authority. However, judicial immunity does not apply when there is no judicial conduct.

• Chen v. City of Seattle 153 Wn. App. 890 (12/28/2009) - Tort

  Run Sen Liu was injured (and subsequently died) when he was struck by a car while crossing a street at a marked intersection. Other accidents had occurred at the intersection and a pedestrian island, which once was sited in the street had been removed. Liu's widow, Chen, sued the city; the city was granted a summary judgment by the court. Chen appealed. The Court of Appeals reversed. Although relevant to the determination of whether a municipality has breached its duty, evidence that a particular physical defect in a roadway rendered the roadway dangerous or misleading or evidence that a municipality was in violation of a law concerning roadway safety measures are not essential to a claim that a municipality breached the duty of care owed to travelers on its roadways. A trier of fact may conclude that a municipality breached its duty of care based on the totality of the circumstances established by the evidence. Chen provided evidence raising a genuine issue as to whether the city of Seattle failed to maintain in a reasonably safe condition the crosswalk in which her deceased husband was struck by an oncoming car. Therefore, the city was not entitled to summary judgment on the negligence claim.

• Conner v. City of Seattle, 153 Wn. App. 673 (12/21/2009) - Landmark Preservation

  Conner sought to develop property that had previously been designated as a landmark. Conner argued that the landmark designation applied only to a house on the property and not to the surrounding grounds. The court disagreed; the designation included both the house and the grounds. Conner further contended that that the Landmarks Preservation Ordinance was unconstitutionally vague as applied and that the landmark restrictions on the property constituted an unlawful tax, a regulatory taking, and deprived him of due process. The court concluded that the ordinance was not vague as each property was reviewed individually. There was no unlawful tax or a takings (the city need not prove a compelling interest).

• Mellish v. Frog Mountain Pet Care, 154 Wn. App. 395 (12/15/2009) - LUPA

  Frog Mountain was granted a variance by the county hearing examiner. Mellish requested reconsideration of the decision. That request was denied and Mellish filed a LUPA action, within 21 days of the reconsideration denial, but over 21 days from the date of the hearing examiner’s decision. Was the LUPA appeal timely? No. The final decision for purposes of LUPA was the decision by the hearing examiner. Was the 21-day appeal period tolled during the period before the motion to reconsider was acted upon? No.

• Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wn. App. 241 (12/15/2009) - Public records

  Suit involving request for computer records. A computer that may have held information sought by Alliance was wiped clean and, thereafter, although Alliance requested information, the computer was not searched. The adequacy of the agency's search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor. An agency fulfills its obligations under the PRA if it can demonstrate beyond a material doubt that its search was "'reasonably calculated to uncover all relevant documents.'" The agency must show that it "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." The adequacy of an agency's search is separate from the question of whether the requested documents are found. Also, there is no cause of action under the PRA to enforce the re-disclosure of records known by the requesting party to already be in its possession.

• Feil v. Eastern Washington Growth Management Hearings Board, 153 Wn. App. 394 (12/03/2009) - Land use/LUPA

  The state sought to place a bike/pedestrian trail through an area devoted to agricultural uses. To accomplish the placement, the state applied for approval under the county's recreational overlay district. Adjacent orchardists objected and appealed. The orchardists objected to the overlay district and raised a number of legal and factual challenges to the county commissioners' decision to approve the overlay. The court concluded, however, that the recreational overlay district was not an amendment to the county's comprehensive plan and that, even if it was, any challenge to the comprehensive plan came too late. The court further concluded that the recreational overlay district did not run afoul of state statutes that encourage the preservation of agricultural land. And we conclude that the decision to permit the overlay was amply supported by the findings of the commissioners, including those they adopted from the hearing examiner. Affirmed by the Supreme Court.

• Nickum v. City of Bainbridge Island, ___ Wn. App. ___ (11/24/2009) - LUPA appeal

  Verizon sought to install an antenna on some private property. The city concluded that the project was exempt from SEPA and issued a permit for the tower's construction. Sometime later (about 50 days after the permit was issued), when neighbors discovered construction activity, an appeal was filed with the hearing examiner. The appeal was denied, however, since more than 14 days had elapsed from the date of permit issuance. (Notice of the permit application, SEPA determination, or permit issuance was not required and was not given.) The neighbors then brought a LUPA appeal in superior court. The court dismissed the appeal for lack of standing and on jurisdictional grounds. The court of appeals affirmed, finding that there was no standing since the neighbors had failed to exhaust their administrative remedies by not appealing to the hearing examiner within 14 days or to the court within 21 days of the permit issuance. The court did not permit an equitable extension of time and concluded that LUPA was not available. The appellants claim that they had been denied due process failed, as it too was covered by the LUPA time limits.

• Kailin v. Clallam County, ___ Wn. App.___ (11/09/2009) - Shorelines appeal

  Does the shorelines hearings board have subject matter jurisdiction to address a reasonable use exception from the County's critical areas ordinance where that ordinance is not a part of the County's shoreline master program? The court concluded that the hearings board did not have jurisdiction.

• Citizens Protecting Resources v. Yakima County, ___ Wn. App. ___ (11/05/2009) - Gift of public funds

  To deal with a flooding problem that threatened the safety of a bridge, the county acquired land and made a trade to allow the relocation of a privately-owned wrecking yard, located on an oft-flooded island that served as a foundation for a bridge. A challenge was brought, arguing that the transaction was a gift of public funds or a lending of credit and that the swap violated RCW 36.34.330. After losing in superior court, and appeal was brought and the court of appeals affirmed. There was no gifting involved since flood prevention and amelioration is a fundamental purpose of government, and the relocation of the business served that purpose. The transaction did not violate the land swap statute because the statute permits counties to exchange surplus real property for other real property that would be useful to the county; however, that was not the situation in this case since the county needed the property in order to facilitate moving one of the wrecking yards; it was not surplus land. The property was purchased solely for the relocation project.

• Kitsap County Deputy Sheriff's Guild v. Kitsap County, 167 Wn.2d 428 (10/29/2009) - Public employment/arbitration

  A deputy sheriff was terminated for various violations, including untruthfulness. The determination was considered by an arbitrator, who found that violations had occurred, but that termination was not an appropriate penalty. The court of appeals overturned the decision, however, finding that the decision violated public policy. The supreme court reversed the court of appeals decision, holding that an arbitrator's decision could be overturned by the courts if the decision violated public policy and the public policy is explicit, well defined, and dominant. The arbitrator's decision did not violate such a policy.

• Mechling v. City of Monroe, 152 Wn. App. 830 (10/26/2009) - Public records

  Mechling sought, among other things, e-mail messages to and from councilmembers, received on personal or business computers; she also requested they be supplied in electronic format. While the city supplied some of the requested documents, it redacted e-mail addresses and did not provide the information in electronic format. Mechling sued and, after the superior court found that the city had complied, appealed to the court of appeals. The court held that the e-mail addresses were not exempt and deferred on the issue of providing records in electronic format, leaving whether it was reasonable and feasible to supply the records in that form to the superior court to decide. The court further advised that a document prepared for a purpose other than or in addition to obtaining legal advice and intended to be seen by persons other than the attorney, does not become subject to the attorney-client privilege merely by being shown to the attorney. And the court held that for those e-mail records which the city withheld, it must provide the name of the author and the recipient of the e-mails.

• City of Federal Way v. Koenig, ___ Wn.2d ___ (10/15/2009) - Public records

  Koenig requested judicial records from the Federal Way court; his requests were denied. On appeals the supreme court, relying on its decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the Court affirmed its conclusion that the Public Records Act does not apply to the judiciary and the legislature has acquiesced to that decision by not modifying the Act.

• Post v. City of Tacoma, 167 Wn.2d 300 (10/15/2009) - Building Code enforcement/LUPA

  Post owned a number of properties within the city, some of which were in violation of building codes and standards. Notices were given to correct the deficiencies or to request a hearing. Subsequent notices did not provide for a hearing. Automatic daily penalties and additional infractions were possible if corrections were not made or agreed to schedules were not kept. Assessments in the hundreds of thousands of dollars were made, and Post appealed. Superior court found the appeals untimely under LUPA and sustained the penalties that had been assessed. On appeal, the supreme court reversed, concluding that LUPA did not bar the appeal, as enforcement action for these civil violations was required to be considered in municipal court and because the remedy sought was for money damages or compensation. The sections of the enforcement code purporting to authorize the unlimited and unreviewable issuance and enforcement of subsequent civil infractions and penalties without any system of procedural safeguards are unconstitutional on their face and as applied.

• Building Industry Association of Washington v. McCarthy, ___ Wn. App. ___ (10/13/2009) - Public records request

  The BIAW sought records from Pierce County, including some e-mails that had been destroyed consistent with state retention guidelines. The county provided all of the records it could find, but the BIAW insisted that, since there were two omitted e-mails, undoubtedly there were others. The BIAW provided no evidence at a summary judgment motion, asked for no discovery, and did not seek a continuance. The court, after reviewing affidavits explaining the county's search for the requested records and its retention practices, granted a summary judgment in favor of the county. The BIAW appealed; the superior court's judgment was affirmed.

• Stientjes Family Trust v. Via-fourre, ___ Wn. App. ___ (10/12/2009) - LUPA

  Decision on issuance of building permit was appealed to the county board of county commissioners. The commissioners reversed an earlier hearing examiner decision and returned the issue to the hearing examiner for additional review (did project comply with critical areas ordinance?). A local jurisdiction's decision concerning a building permit application is final for purposes of LUPA if a party "receive[s] the relief it had requested" and no additional issues remain. Because additional issues in the controversy remained to be decided and appellant might yet prevail, the commissioner's decision was not final. Accordingly, the superior court lacked authority to consider LUPA petition.

• Abbey Road Group v. City of Bonney Lake, 167 Wn.2d 242 (10/08/2009) - Vesting

  Abbey Road sought to build a multifamily condominium development. Its representatives met with the city and then later submitted a site plan application. On the day that the site plan application was filed, the city changed the zoning for the area, and the proposed use was no longer available. The city denied the site plan. Following appeals to a hearing examiner, superior court and court of appeals, the supreme court was asked to determine whether the filing of a site plan vested the proposal under the regulations then in place (which would have allowed the development). A divided court, in a plurality decision involving a lead opinion and a concurrence, concluded that vesting occurs when a complete building permit application is made, as provided for both by case law and statute, not at an earlier stage. The majority concluded that the City did not require an approved site plan before it would consider a building permit application.

• City of Seattle v. St. John, 166 Wn.2d 941 (09/10/2009) - DUI and implied consent

  The defendant crashed a motorcycle. After investigation, the police determined that St. John may have been under the influence of alcohol at the time of the accident. The police sought a breath test, but St. John refused. Thereafter a warrant was obtained allowing for the taking of a blood sample to test for alcohol. May a driver be required to take a blood test ordered by a warrant after he or she has denied a request to have a breath test taken? Yes. The implied consent statute explicitly allows a police officer to obtain a blood alcohol test pursuant to a warrant, even after a driver refuses a voluntary blood alcohol test. Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence.

• Kapo v. Central Puget Sound Growth Management Hearings Board, 152 Wn. App. 190 (09/09/2009) - Interplay of Shoreline Management and Growth Management Acts

  Kitsap County, in updating its critical areas ordinance, imposed a 35-foot buffer around the county's marine shorelines. Appeals were made to the growth management hearings board challenging the buffer as either being inadequate or excessive. The hearings board, applying growth management, upheld the buffer but remanded with direction to increase the buffer's size. An appeals was brought in superior court, which upheld the hearings board's decision, and a further appeal was made to the court of appeals. The court of appeals reversed and remanded for consideration of the buffer under the Shoreline Management Act. Which act should control? The Growth Management Act or the Shoreline Management Act? The court, in reaching its decision, followed Futurewise v. Western Washington Growth Management Hearings Board, 164 Wn.2d 242 (2008), a plurality opinion. When following a plurality decision, the holding of the court is the position of the justice(s) concurring on the narrowest grounds. In this instance, the court held that only one plan-- the SMA plan -- can be in effect at one time; accordingly, the Kitsap County critical area ordinance was reversed and the matter remanded to the Board for further remand to the County to plan for the shoreland regions under the Shoreline Management Act.

• Vonage America v. City of Seattle, 152 Wn. App. 12 (09/08/2009) - Taxation

  Vonage provides telephone service, both intrastate and interstate, by use of VoIP, Voice over Internet Protocol, changing analog messages to digital and then sending the messages over the internet. Seattle taxed a portion of Vonage's income, and Vonage appealed. The court concluded that services like Vonage's are not interstate as a matter f law regardless of the actual service usage; Vonage is subject to the City's telephone utility tax but the assessment must be based on the intrastate component of Vonage's service. Although Vonage's VoIP service is delivered through the Internet and has some similarities to e-mail, it is not an Internet service provider, exempt from tax under RCW 35.21.717. And, as to a requirement for nexus, while there was no evidence that Vonage owned or leased property in Seattle or that it had employees in Seattle during the audit, it obtained a sufficient physical presence in the city by purchasing the right to use telephone lines in Seattle through its affiliate, Vonage Networks, Inc. As to the calculation of the tax, the court concluded that the City must produce substantial evidence that its tax assessment is based on the intrastate component of Vonage's VoIP service, i.e., an estimate of calls initiated and terminated within Washington state. Once that burden is met, it falls on Vonage to demonstrate that the estimate is inaccurate and to establish a more accurate estimate.

• City of Spokane v. Rothwell, 166 Wn.2d 872 (09/03/2009) - Jurisdiction of district court judge serving as municipal court judge

  Spokane, by agreement with the county, used district court judges as its municipal court judges. The defendant challenged a conviction of the municipal court, arguing that the trial judge was not elected solely by city voters. The conviction was affirmed on appeal and an appeals was taken to the supreme court. The supreme court reversed, concluding that the municipal court judge had de jure jurisdiction. The judges were "elected" in the county and, by agreement with the city, rotated as municipal court judges. The judge's appointment as a municipal judge was a direct result of her election and therefore was not inconsistent with former RCW 3.46.063, which required municipal court positions to be filled by election. The election was for a district court office, not full time municipal judge, and therefore the election did not have to be only by ity voters under former RCW 3.46.070.

• In re Forfeiture of 1970 Chevrolet Chevelle, 166 Wn.2d 834 (09/30/2009)- Forfeiture of vehicle associated with trade of illegal drugs

  Pursuant to RCW 69.50.505, relating to drug trafficking, vehicles can be forfeited if they, among other things, were used in the drug trafficking. Forfeiture is not available if the vehicle owner was an "innocent owner." Here the hearing examiner concluded that the owners should have known of the illicit activities for which their cars were used and were, therefore, not considered "innocent owners" under RCW 69.50.505(1)(d)(ii). On appeal the court reversed, concluding that the term "knowledge" under the meaning of RCW 69.50.505(1)(d)(ii) is satisfied only by proof of actual knowledge.

• Morgan v. City of Federal Way, 166 Wn.2d 747 (08/20/2009) - Public records

  A municipal judge was alleged to have created a hostile work environment. The city attorney initiated an investigation and notified the judge, seeking cooperation. Although the judge sought to stop the investigation, it was completed and a report was prepared. A local newspaper requested a copy of the investigative report. The judge sought a court order prohibiting the release of the report. Although the court initially prohibited the release, it later lifted the ban and the judge appealed. The Court concluded that the report was a "public record" (prepared, owned, used, and retained by the city). It was not exempt as work product, as when it was prepared, there was no anticipation of litigation. There was no attorney-client privilege because the attorney who prepared the report did not have an attorney-client relationship with the judge. And there was no personal information exemption (privacy) since the items in the report were not "highly offensive" and the judge failed to demonstrate how disclosure would not be in the public interest.

• City of Seattle v. Wilson, 151 Wn. App. 624 (08/17/2009) - Traffic/criminal

  The City enacted an ordinance that criminalized committing a traffic infraction that results in death or great bodily harm without any requirement that the driver have a culpable mental state. The defendant Wilson failed to yield the right-of-way (which could have been charged as a traffic infraction), resulting in the death of a bicyclist. Upon appeal, the court held that the ordinance violated a state statute [RCW 46.63.020], that prohibits classifying a traffic infraction as a criminal offense; the ordinance was invalid and cannot be enforced.

• Grays Harbor Energy v. Grays Harbor County, 151 Wn. App. 550 (08/11/2009) - Property valuation for tax purposes

  Is power generating equipment affixed to land in a non-operating power plant taxed as real property or as personal property? The court concluded that by statute the property should be taxes as personal property. RCW 84.12.280 provides in part that "all of the operating property other than lands and buildings of electric light and power companies . . . shall be assessed and taxed as personal property." And RCW 84.12.200(12) provides in part that "operating property" means and includes "all property, real and personal . . . used by the company in the conduct of its operations." These provisions clearly exempt the generators from taxation as real property. The statutes are not only applicable to assessments by the state department of revenue. And the statutes are not unconstitutional; the legislature may adopt statutes that are inconsistent with the common law, treating these assets as personal property, even though they would be treated as real property under common law.

• City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633 (07/16/2009) - Land use/constitutional law

  Does the city's refusal to permit a church to host a homeless tent city violate its state constitutional right to religious freedom and violate the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc et seq.)? The court held that the City violated the Church's constitutional rights under article I, section 11 when it refused to process the Church's permit application based on a total moratorium on temporary use permits in the area. Rather than seeking to impose reasonable conditions on the Church's project to protect the safety and peace of the neighborhood, the City categorically prevented the Church from exercising what the City conceded was a religious practice. Having reached its conclusion on state constitutional grounds, the court did not consider the federal Religious Land Use and Institutionalized Persons Act issue. Also, the court found that the church was not bound by a 2004 agreement requiring the church to obtain a permit before establishing a new tent city location since the city breached the earlier agreement by refusing to consider a permit application due to the moratorium it had imposed.

• Koenig v. Pierce County, 151 Wn. App. 221, (07/13/2009) Public disclosure

  Following his arrest for a matter that was never prosecuted, the defendant Koenig sought from the county sheriff and county prosecutor all of the materials relating to the decision to not prosecute. While some materials were provided by both county departments, the prosecutor's office withheld some records as being work product. Koenig sued. Following a decision favorable to the county, Koenig appealed, and the court upheld the superior court's decision. The court upheld the county's use of the plurality decision in Limstrom v. Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998), relating to the withholding of work product and the application of CR 26. The court also found that there was no responsibility for the county to coordinate the responses from the prosecutor and the sheriff. Also the court found that the county had adequately described the records it had withheld.

• McAllister v. Bellevue Fireman's Pension Board, 166 Wn. 2d 623 (07/09/2009) - Retirement benefits

  Firefighters who made retirement contributions under the Firefighters' Relief and Pensions-1955 Act retired after firefighter retirement benefits came from the LEOFF retirement plan. The plaintiffs sought to have their retirement benefits calculated under the definitions used under LEOFF. The Court upheld the city's decision to calculate excess payment according to the basic salary under the 1955 Act rather than under LEOFF.

• City of Bellevue v. Lee, 166 Wn. 2d 581, (07/09/2009)- Suspension of driver's license

  If a person's driver's license is suspended for failure to appear, respond, failure to pay fine, or otherwise comply with a traffic citation, his or her driver's license, after a 45-day notice period, can be suspended. The driver, however, may request an administrative review. The review involves the department of licenses (DOL) reviewing various documents submitted to it relating to the proposed suspension. There is no in-person or telephone hearing. Lee argued that the review process failed, as it lacked a hearing, failed to provide due process. The court disagreed and concluded that DOL's procedures provide both notice and a meaningful opportunity to be heard. The license suspension was upheld.

• Beal, Cummings. Rasmussen and Wingard v. City of Seattle, ___ Wn. App. ___ (06/22/2009) - Public records

  Plaintiffs requested "documentation supporting [the city's] asserted inability to implement our suggestions or any of the alternatives to their proposal." When the orally requested documentation was not provided, plaintiffs filed suit under the public records act. The court concluded that the plaintiffs had asked for documentation but were not sufficiently precise to constitute a request for an identified record. The problem was with the ambiguity of the request, not the form of the request.

• State v. Immelt, ___ Wn. App. ___ (06/08/2009)- Nuisance/noise

  Immelt, mad at some of her neighbors, honked her car horn early in the morning and then later, after having been advised to not do so except for public safety purposes. Having honked her car horn after being warned by a sheriff deputy, Ms. Immelt was convicted. She appealed, arguing that the nuisance ordinance, which prohibited unnecessary honking, violated the constitution and her right of free speach. The court disagreed, finding that the ordinance was presumed constitutional and, in any case, hthe honking of a horn is not per se speech. The ordinance was not vague, and no speach was involved.

• Snohomish Regional Drug Task Force, Res. v. Yatin, 150 Wn. App. 387 (06/01/2009) - Drug forfeiture

  Notice of appearance served on counsel within 90 days of seizure of the properties by recording of the lis pendenses is sufficient written notices under RCW 69.50.505(5), the drug seizure and forfeiture statute. The petitioners were entitled to a hearing to address their rights as others with claimed interests in the property that had been seized.

• Spokane Airports v. RMA, Inc., 149 Wn. App. 930 (04/28/2009) - Airports/condemnation

  In this instance, the Spokane Airport is jointly run by the city of Spokane and Spokane County through a joint agreement allowing operation through a separate board. Due to FAA requirements, it became necessary to condemn certain buildings (including some used by RMA). The city and county adopted resolutions to condemn RMA's leases, and the joint operating board sued to condemn the leases. Although there were other issues, the court held that the condemnation suit was improperly brought by the joint board; RCW 18.08.200(9) requires such a suit be brought jointly by the municipalities (the fact that the city and county had adopted resolutions was not enough; the suit needed to be brought by both as well).

• Brunson v. Pierce County Auditor, 149 Wn. App. 855 (04/21/2009) - Revocation of license

  Ms. Brunson and two other women performed lap dances at an adult entertainment business, contrary to county regulations. In view of this violation, the county auditor suspended the dancers' erotic dancer license for one year; after the suspension was affirmed by the hearing examiner, the dancers appealed. The county code permitted license suspension for "a specified period of not more than one year." The auditor expressed the opinion that any violation of the code was serious and warranted a one-year suspension; she could not describe a situation that would warrant a shorter suspension period. The court held that the auditor abused her discretion by failing to exercise the discretion that county code provided to her. The only cure for the abuse of discretion is a remand and a new hearing with instructions that the auditor exercise the allocated discretion. The court further held that use of a "preponderance of the evidence" standard for determining whether there should be a suspension is adequate for this, an occupational license.

• Spice and Plexus v. Pierce County, 149 Wn. App. 461 (03/31/2009) - LUPA

  LUPA appeal filed and later voluntarily withdrawn. County moved to have LUPA appeal dismissed with prejudice; it was and thirteen months later applellants sought to vacate the dismissal order. Due to passage of time (more than 21 days) and fact that appeal was voluntarily withdrawn, issue is moot and court does not have jurisdiction to vacate dismissal order. Appellant would not be able to refile, even if dismissal vacated, as more than 21 days has elapsed.

• State v. Kirwin, ___ Wn.2d ___ (03/26/2009) - Criminal law

  A person was arrested for littering and, subsequent to his arrest, a search was made of the automobile in which he was riding; drugs were found and the defendant was charged with a drug offense. The defendant argued that the city ordinance making littering a crime (instead of an infraction, as it is under state law) was preempted by state law and thus the search following arrest was improper. The Court disagreed. Both the state law and the city ordinance addressed the same act and thus was not in conflict with state law; additionally, the staate law did not preempt local regulation.

• City of Gig Harbor v. North Pacific Design, ___ Wn. App. ___ (03/02/2009) - Land use/zoning

  A developer applied for a preliminary plat and planned residential development (PRD). Although the PRD regulations provided a means to increase density in a PRD, the developer chose to increase density by seeking a conditional use permit for the underlying zone. A conditional use permit (CUP) would allow a possible density increase from 8 dwelling units per acre to 12 dwelling units per acre. The city’s hearing examiner approved the plat, the CUP (for 11.75 dwelling units), and the PRD. The city appealed the hearing examiner decision, arguing the PRD regulations described the exclusive means to increase density in a PRD, and because a PRD rezoned the property, the developer was required to either follow the development standards of the underlying zone or those standards in the PRD regulations. The court disagreed, concluding that there was no rezone if the density allowed by the underlying zoning "expressly permitted" the density sought. The court found that the regulations relating to density in the PRD and underlying zone could be harmonized. The City argued that the PRD prohibited any increase in density in this particular case because it was inconsistent with the underlying comprehensive plan designation for the property, but the court found the increase in density to be allowed by the zoning code.

• Samson v. City of Bainbridge Island, 149 Wn. App. 33 (02/24/2009) - Shorelines Management

  The city amended its shorelines master program (SMP) to prohibit construction of new single-use private docks and to limit dock construction in Blakely Harbor to two joint-use docks, one community dock, floats, and buoys. Samson appealed the city's actions, arguing, among other things, that the city's amendments were not consistent with state guidelines, the city's SMP and comprehensive plan, and violated the public trust doctrine. The hearings board ruled against Samaon and, on appeal, the court of appeals affirmed. The state guidelines that Samson argues are inconsistent with the city's amendment were not yet in effect when Samson brought the appeal. The city's amendments protected Blakely Harbor, a harbor that is less developed than other shorelines of the city and the city amendments did not prohibit all forms of access to the harbor. In addition, the amendments protected the harbor, which is consistent with the public trust doctrine.

• Parmelee v. Clark, ___ Wn. App. ___ (02/23/2009) - Public records

  Prison inmate made public records request to Department of Corrections, but not to person designated to accept requests. Because the two record requests were not submitted to the designated public disclosure coordinator, the agency may not be penalized for failing to respond to them in a timely fashion.

• Rental Housing Association v. City of Des Moines, 165 Wn.2d 525 (01/22/2009) - Public records] When a requesting party is dissatisfied with an agency's response to a records request, it may bring an action under the PRA but must do so "within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis." RCW 42.56.550(6). When does that one-year period begin? Rejecting the argument that that a "claim of exemption" starts the clock, the court finds that the period begins when a "privilege log," is issued. To satisfy the privilege log requirement, it appears that a response denying a record request must (1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld documents.

• Hale v. Wellpinit School District, ___ Wn.2d ___ (01/15/2009) [Personnel – Disability

  A challenge was brought to determine that a legislative amendment defining the term “disability” could be made retroactively or whether such retroactive application violated the separation of powers doctrine. (The legislative amendment applied to cases arising before the supreme court adopted in a decision the federal definition for what constitutes a “disability.”) The Court held that the retroactive application did not violate the Separation of Powers Doctrine.

• Yousoufian v. Office of Ron Sims, 165 Wn.2d 429 (01/15/2009) - Public records

  This decision provides the latest chapter in a public records case that has spanned over 11 years. This particular decision involves the calculation of the penalty to assess when a court determines that a records request response has been improperly delayed or denied. The trial court, after reviewing the record, concluded that the penalty should be $15 per day (set at the lower end of the statutory scale of $5 to $100 per day). A majority of the court, in a divided decision with five opinions, concluded that the trial court had abused its discretion in setting the penalty at $15 (one of the opinions suggested the penalty would be more appropriately set near $100). In sending the case back to the trial court, the majority provided a list of factors to consider in deciding the amount of penalty. Mitigating factors are: the lack of clarity of the request; an agency's prompt response or legitimate follow-up inquiry for clarification; good faith, honest, timely, and strict compliance with all the procedural requirements and exceptions; proper training and supervision of personnel; reasonableness of any explanation for noncompliance; helpfulness of the agency to the requestor and the existence of systems to track and retrieve public records. Aggravating factors that increase a penalty are a delayed response, especially in circumstances making time of the essence; lack of strict compliance with all th procedural requirements and exceptions; lack of proper training and supervision of personnel and response; unreasonableness of any explanation for noncompliance negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act; dishonesty; potential for public harm, including economic loss or loss of governmental accountability11; (8) personal economic loss; and a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.

• Spokane County v. City of Spokane, 148 Wn. App. 120 (01/06/2009) - GMA

  The Growth Management Hearings Board does not have statutory authority to require a county to establish a "joint planning area" with the City of Spokane within an established urban growth area.

2008

• City of Tukwila v. Garrett,___ Wn.2d ___ (11/26/2008) - Criminal law/jury selection

  Tukwila used the King County court system for selection of a jury pool; in this instance, jurors were selected from three zip codes that included an area roughly equivalent to the city's boundaries. The defendant objected. The Court held that a valid oral agreement authorized King County Superior Court to provide jury selection services for Tukwila Municipal Court, and that selecting the jury pool from the area encompassed by the three zip codes that applied to the City of Tukwila substantially complied with RCW 2.36.050.

• City of Union Gap v. Washington State Department of Ecology, 148 Wn. App. 519 (11/13/2008) - Water rights

  A private company bought property, including associated water rights. The company intended to sell the water rights to the city, and it entered into negotiations with the city for that purpose. However, while the company's intent was clear, and the city expended funds in anticipation of the purchase, the water rights went unused for over five years. The court concluded that the water rights had been relinquished. The owner of a water right relinquishes that right to the state if the water right is not used beneficially for five years. But the owner does not relinquish that right, despite nonuse, if it is claimed for some "determined future development" or for "municipal water supply purposes." Here, a developer bought water rights intending to sell them to a city. The court concluded that the sale did not take place within the required five-year period before the developer relinquished the water rights. Nor did the developer satisfy the requirements of either the "determined future development" or the "municipal water supply purposes" exceptions to the general rule of relinquishment after five years of nonuse of the water rights.

• Broyles v. Thurston County, 147 Wn. App. 409 (11/12/2008) - Personnel

  Three female deputy prosecuting attorneys brought suit against the county, alleging hostile work environment and retaliation. The plaintiffs prevailed and the county appealed. There were numerous issues on appeal; however, one argument made by the county was that the county could not be held liable for the actions of an independently elected official, the county prosecuting attorney. The court disagreed. A county is "an artificial being, invisible, intangible, and existing only in contemplation of law," which by necessity "must act through its officers, directors, or other agents." The County is liable for its prosecuting attorney's discriminatory employment acts. Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf. While the county should not be held liable for actions a prosecutor takes while representing the State, such as in filing or trying criminal cases, it is liable when the prosecuting attorney is acting for the county when performing administrative tasks, such as in making personnel decisions.

• Isla Verde International Holdings v. City of Camas, 147 Wn. App. 454 (11/12/2008) - Land use/takings

  As a condition of development, the city required Isla Verde to dedicate 30 percent of its property to open space. Isla Verde appealed and eventually the supreme court concluded that, without a demonstration that the set aside related to the proposed development, the open space requirement represented an unlawful violation of RCW 82.02.020. Isla Verde filed a LUPA action against the City for damages under RCW 64.40.020, asserting that the city knew or reasonably should have known that its imposition of a mandatory 30 percent open-space set-aside was "unlawful" within the meaning of RCW 64.40.020(1), thus entitling it to damages, costs, and attorney fees as a matter of law. The superior court granted a summary judgment in Isla Verde's favor. On appeal, the court held that there were significant issues of material fact that required resolution by trial. The supreme court's decision in Isla Verde was the first time set asides were found in violation of the law; even afterward it was unclear whether similar requirements were violations of the law. Accordingly, there were issues of fact that needed to be resolved in trial, not as a matter of law.

• Parrell-Sisters MHC v. Spokane County, 147 Wn. App. 356 (11/06/2008) - Utility charges

  The plaintiff operates a mobile home park. The county charged the mobile home park a capital facilities rate fee for the presumed impact the septic system used by the mobile home park had on an aquifer. Parrell-Sisters sued, but the trial court ruled in the County's favor, finding that the charge was a regulatory fee. On appeal, the decision was reversed. The court applied RCW 35.67.370, which it found to be unambiguous, and which prohibits local governments "from requiring existing mobile home parks to pay a sewer service availability charge, standby charge, consumption charge, or any other similar types of charges associated with available but unused sewer service." The County The County asserted that the fee charged the mobile home park for the impact of its septic system on the aquifer, not for unused sewer service. The Court disagreed, finding that the charge violated the statute; the CFR fell within the broad language of the statute prohibiting charges associated with available but unused sewer service.

• Fisk v. City of Kirkland, 164 Wn.2d 891 (10/23/2008) - Tort liability

  The Fisks were driving an RV through the city when their vehicle caught on fire. Responding firefighters were faced with a fire hydrant that lacked sufficient pressure for firefighting purposes. By the time a second hydrant was opened, the Fisk vehicle had suffered significant damage. The Fisks sued, citing negligence. The trial court found no city duty and dismissed the claim; an appeal followed. The court found that the city water department was a "water company" and thus covered by RCW 80.28.010 which, arguably, made the city liable for its failure to provide a sufficient supply of water. However, the court concluded that the statute only covered the furnishing of water "for hire," and not the water provided for fire suppression. And the state has not impliedly created a duty. Thus, the court held that when a municipality provides water for fire suppression as a service to the public, the municipality is not liable in tort for negligence for the increased fire damage because of insufficient water pressure for fire suppression purposes.

• Wilson v. City of Seattle, 146 Wn. App. 737 (07/21/2008) - Tort liability

  The plaintiff was injured when she fell into a manhole located in the parking strip area of her property (the manhole cover had somehow flipped, opening the manhole). The superior court granted summary judgment in the City's favor and, on appeal, the court affirmed. A municipality has a duty to maintain its parking strips in a reasonably safe condition. What constitutes a reasonably safe condition on a parking strip is not the same as it is for a sidewalk because a sidewalk's purpose is mainly pedestrian use, while a parking strip frequently contains utility poles and meters, fire hydrants, trees, grass, and other ornamentation. Manholes in parking strips are common, and in this instance the cover was open and obvious. No one had ever complained about the open manhole; the city had no notice. The plaintiff failed to prove that the city had breached any duty.

• Lane v. City of Seattle, 164 Wn.2d 875 (10/16/2008) - Finance/Utilities

  Is it legal for the city water utility customers to pay for fire hydrants? No; provision of hydrant service is a governmental function. Following a decision regarding the payment for street lights, Seattle had its general fund pay for hydrant service, paying the cost from proceeds of a utility tax it levied on its water utility. The utility then raised its rates to pay for the tax. As to earlier (pre-tax) charges, Seattle must make refunds to its affected customers, plus interest. Furthermore, other jurisdictions who have secured hydrant service must pay Seattle for that service.

• Navlet v. Port of Seattle, ___ Wn.2d ___ (10/16/2008) - Personnel: vesting of retirement benefits

  The port's collective bargaining agreement provided for retirement benefits. After the agreement expired, the port ceased paying into the retirement benefit plan and the plan stopped providing benefits to current and retired employees. The Court held that state law governs the vesting principles for retirement welfare benefits conferred through a collective bargaining agreement with a state employer. Applying the applicable vesting principles to the CBA, we further hold that the Port is obligated to provide retirement welfare benefits for life to Appellants who have satisfied the eligibility requirements to receive such benefits. Retirement welfare benefits conferred in a collective bargaining agreement constitute deferred compensation where the parties negotiate for such benefits as part of the total compensatory package. The compensatory nature of the benefits creates a vested right in the retirees who reached eligibility under the terms of the applicable collective bargaining agreement. Once vested, the right cannot be taken away and will survive the expiration of the agreement. The Court further held that the obligation to provided vested retirement welfare benefits does not require the Port to revive and fund the Welfare Trust. While the Port used the Welfare Trust as the tool to deliver its obligation to provide benefits, it may continue to fulfill its obligations through another vehicle that provides a sustainable way of delivering benefits reasonably commensurate with the level of benefits promised in the collective bargaining agreement.

• City of Arlington v. Central Puget Sound Growth Management hearings Board, 164 Wn.2d 768 (10/09/2008) - GMA

  The supreme court affirmed an earlier Court of Appeals decision, and adopted the decision as its own. The court upheld Snohomish County's amendment of its comprehensive plan, concluding that the area in question was properly redesignated from agricultural to urban commercial.

• Danny v. Laidlaw Transit Services, ___ Wn.2d ___ (10/03/2008) - Termination of employment and public policy

  An employee suffered disciplinary action and was later terminated after she took time off work to deal with domestic violence issues facing her family. The plaintiff sued in federal district court, and that court asked the state supreme court the following (reformulated) question: Has the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The supreme court answered in the affirmative, stating: "Washington State has unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivors and their families and holding abusers accountable."

• Brutsche v. City of Kent, ___ Wn.2d ___ (10/02/2008) - Inverse condemnation

  While searching for drugs pursuant to a search warrant, police broke doors and door jambs. Is property damage inflicted during the execution of a search warrant compensable? Liability in trespass may arise if, by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant, the police damage property, or if the warrant is executed in a negligent manner, resulting in property damaged. Although a trespass action is a permissible cause of action, summary judgment for the city's was properly granted because, as a matter of law, on the evidence submitted; the officers did not exceed the scope of their privilege to be on the property to execute the search warrant. The Court also concluded that the plaintiff, Brutsche, was not entitled to assert a takings claim.

• American Legion Post No. 149 v. Department of Health, ___ Wn.2d ___ (09/11/2008) - Health regulation/No Smoking

  Do "no smoking" regulations apply to private facilities that are places of employment? A divided supreme court (5 to 4) has found that they do and that such regulations are not unconstitutional. If a facility is a "place of employment," regardless of whether it is a "public place," smoking is prohibited Thus, the exception for private facilities is an exception to the definition of a "public place" and does not apply to the prohibition against smoking in "any place of employment." The court also concluded that the American Legion lacks representational standing and is precluded from asserting that the Act violates its members' liberty interests without due process of law. Does the regulation violate American Legion's right to privacy? Because there is not a fundamental right to smoke, there is no privacy interest in smoking in a private facility. Nor does the regulation violate the right to association. Since the regulations are rationally related to protecting public health, they do not violate due process or article I, section 7 of the state constitution. Smoking inside a place of employment is not a fundamental right of citizenship and, therefore, is not a privilege. Because there is no privilege involved, the court held there is no violation of article I, section 12. The regulations were sufficiently definite to overcome a void-for-vagueness challenge.

• First Pioneer Trading Co. v. Pierce County, 146 Wn. App. 606 (09/3/2008) - Zoning

  The plaintiff sought to continue a steel fabrication business on property it owned. The county denied the request, indicating that the continued use was not allowed under the zoning code and it was not a lawful preexisting use. The hearing examiner ruled against First Pioneer, as did the superior court, and on appeal the court affirmed. First Pioneer failed to demonstrate that it had used the property for industrial uses at the time the county's zoning went into effect, plus First Pioneer failed to obtain a conditional use permit at the time, which would have allowed a lawful use to continue. To prevail in keeping a nonconforming use, an applicant an applicant has initial burden to prove that (1) the use existed before the county enacted the zoning ordinance; (2) the use was lawful at the time; and (3) the applicant did not abandon or discontinue the use for over a year. First Pioneer failed to do so.

• Lakeland v. City of Bonney Lake, 147 Wn. App. 64 (09/03/2008) - Development charges

  A developer challenged the city's water system development charge. On appeal, the court voided the city ordinances, concluding that the city adopted the ordinances based on outdated and incorrect numbers.. The court instructed that the City had the burden of satisfying RCW 35.92.025 by providing reasonable charges on equitable shares of the cost of the system and that its decision could not be arbitrary. While an expert opinion is permissible in support of the development charge regarding information and data that was before the City when it adopted the ordinance, new methodologies (that is, methodologies prepared after the ordinance has been adopted) are not relevant to the court's consideration whether the rates were reasonable when adopted.

• In re Recall of Davis, 164 Wn.2d 361 (08/14/2008) - Recall of officer

  A port commissioner signed an agreement providing for severance pay for the port's departing chief executive officer. A citizen sought to recall the commissioner for taking this action outside a public meeting. The Court inferred from the record that the commissioner understood her duties as a port commissioner and the legal necessity of voting in public session before potentially obligating the port in any monetary agreement, and, for purposes of recall, intentionally acted outside the scope of these duties by signing an agreement. The Court further found that the recall petition was legally sufficient in charging the commissioner with an act of malfeasance by signing the agreement which had the potential effect of obligating the Port of Seattle to pay the outgoing employee. Additionally, the Court found that the payment was not voted on or approved by the port at a regularly scheduled public hearing and thus concluded charge one of the ballot synopsis is legally sufficient.

• Thurston County v. Western Washington Growth Management Hearings Board, 164 Wn.2d 329, (08/14/2008) - GMA

  A party may challenge a county's failure to revise a comprehensive plan only with respect to those provisions that are directly affected by new or recently amended GMA provisions, meaning those provisions related to mandatory elements of a comprehensive plan that have been adopted or substantively amended since the previous comprehensive plan was adopted or updated, following a seven year update. If a county fails to revise its comprehensive plan to comply with new or amended GMA requirements, a party must be able to challenge the comprehensive plan or GMA amendments. A party may challenge a county's failure to revise its UGA designations during a 10 year update only if the OFM population projection for the county changed. A county's UGA designation cannot exceed the amount of land necessary to accommodate the urban growth projected by OFM, plus a reasonable land market supply factor. "[A] market factor represents the estimated percentage of net developable acres contained within a UGA that, due to idiosyncratic market forces, is likely to remain undeveloped over the course of the twenty-year planning cycle." A Board should not reject urban densities based on a bright-line rule for maximum rural densities, but must consider local circumstances and whether these densities are not characterized by urban growth and preserve rural character. The GMA does not dictate a specific manner of achieving a variety of rural densities.

• Futurewise v. Western Washington Growth Management Hearings Board, 164 Wn.2d 242 (07/31/2008) - GMA and Shorelines Management Act

  Does the Growth Management Act apply to critical areas located in a city's shoreline master plan until the city updates its master plan under the Shorelines Management Act? No. The state legislature made it clear that critical areas within the jurisdiction of the Shorelines Management Act (SMA) shall be governed only by the SMA.

• Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, (07/31/2008) - Public records disclosure

  The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.

• West v. Port of Olympia, ___ Wn. App. ___ (07/21/2008) - Public disclosure

  The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the “deliberative process” exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.

• O’Neill v. City of Shoreline, ___ Wn. App. ___ (07/21/2008) - Public disclosure

  A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.

• Group Health Cooperative v. City of Seattle, 146 Wn. App. 80 (07/21/2008) - Business and occupation taxes

  Are premium payments made by customers to the Cooperative (a HMO), as well as payments made by the federal government from the Federal Employee Health Benefits Fund (FEHBA) subject to the city’s business and occupation tax? RCW 48.14.0201(7), precludes Washington municipalities from assessing local taxes on health care premium payments made to HMOs. The City had contended that its method of calculating the "taxable portion" of Group Health's premium revenue was not, in fact, a tax on health care premiums because some portion of Group Health's premium revenue is necessarily spent on the direct provision of health care services by Group Health employees. The court found that the legislature did not intend to preempt the ability of municipalities to impose excise or privilege taxes on "health care services directly delivered" by HMOs that are not covered by the prepaid benefit plans purchased by HMO customers. Further, the FEHBA provides that neither states nor municipalities may impose any tax on FEHBF payments.

• Swineheart v. City of Spokane, ___ Wn. App. ___ (07/15/2008) - Recreational immunity statute

  The plaintiff was injured when he slid down a large slide into a sawdust pit that did not have adequate sawdust. He sued for his injuries. The city argued that it was immune from liability under the recreational immunity statute. The plaintiff argued that the lack of fill material was a latent condition, which took the injury outside the immunity statute protection. On appeal the court held that the condition of the playground fill was obvious to park visitors. The City was entitled to the benefit of immunity under the recreational use statute.

• City of Spokane Valley v. Spokane County, 145 Wn. App. 825 (07/15/2008) - Disposition of county roads upon annexation of area into city

  Spokane County purchased railroad right-of-way, dedicated the land to highway purposes, and developed a road on a portion of the right-of-way. This area became part of the City of Spokane Valley upon the incorporation of that city. By statute, county roads revert to a city upon incorporation. Does a city receive only the improved roadway, or the entire right-of-way? The court held that the unimproved right-of-way does not meet the definition of "county road" and, thus, did not revert to the City under RCW 35.02.180. Additionally, it held that the right-of-way fell within the exemption under RCW 36.87.090 for properties purchased by deed.

• City of Port Angeles v. Our-Water Our-Choice, 145 Wn. App. 869 (07/15/2008) - Power of initiative

  The city determined that fluoride should be added to its water; a citizens committee objected and filed an initiative to prohibit the addition of fluoride. The trial court rejected the initiative, which decision was appealed. The court of appeals affirmed the trial courts decision. First the court concluded that a preelection review of the initiative was permitted since a local initiative must be consistent with federal and state law. The court held that the issue at hand was administrative in nature and related to a power given to the city council, rather than "to the city," and thus was not subject to an initiative.

• Citizens Alliance for Property Rights v. Ron Sims, 145 Wn. App. 649 (07/07/2008) - Does county's limitation on land clearing of rural property violate RCW 82.02.020?

  The county adopted clearing and grading limitations that, for rural residential properties, could limit clearing and grading up to 50 percent of the property. Citizens Alliance challenged the limitations, arguing that they amounted to a violation of RCW 82.02.020. While the county prevailed in superior court, the decision was reversed on appeal. The court concluded that the ordinance imposes clearing requirements that are an in kind indirect "tax, fee, or charge" on development, in violation of the statute and that the county failed to prove that the regulation fell within one of the recognized statutory exceptions. There was no persuasive claim that the variation in clearing restrictions provided by the county ordinance proportionally related to proposed development, a necessary element to satisfy the statutory exception. The county ordinance imposes a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development.

• Vergeson v. Kitsap County, 145 Wn. App. 526 (07/01/2008) - Negligence; failure to remove arrest warrant from files

  The plaintiff was arrested for an arrest warrant , one that had been issued to an alias, that had been quashed by a court. She sued, arguing that the county (and a city) had been negligent in its failure to remove the warrant from its record system. On appeal, the court held that the public duty doctrine applied and the plaintiff failed to establish an exception; and, in the alternative, even if the County and City owed an individualized duty to the plaintiff, she failed to show that the County and the City did not exercise ordinary care.

• Renner v. City of Marysville, 145 Wn. App. 443 (06/30/2008) - Claim statute

  Renner was fired by the city. He sued, arguing wrongful termination. Prior to filing his lawsuit, however, he filed a claim with the city, as required by RCW 4.96.020, on a form supplied by the city. Later the city challenged Renner's claim, arguing that he had failed to list his place of residence for the six months prior to filing his claim, and Renner failed to state the amount of damages sought. The court rejected the city's arguments, finding that Renner had filled out the form he had been supplied by the city, and the city itself, through its personnel records, could determine his place of residency. As to the amount of damages, the court determined that the city would be able to generally determine Renner's damages, based upon its personnel records.

• Residents v. Site Evaluation Council, 165 Wn.2d 275 (06/26/2008) - Siting of energy facilities

  This case arose out of opposition to a wind turbine facility planned for Kittitas County. After a decision by the county to deny an application for the wind facility, the developer petitioned the state Energy Facility Site Evaluation Council ("EFSEC"), seeking to have the EFSEC preempt county regulations. The EFSEC voted to preempt the county regulations and, ultimately, the governor accepted the EFSEC's response and approved the site certification. After appeal through the courts, the supreme court held that the EFSEC governs the siting of wind energy facilities and that the council's preemption authority does not violate the state Growth Management Act. The court also found that the FEIS adequately addressed mitigation concerns and that substantial evidence supported the EFSEC's decision to preempt the local land use and zoning laws.

• Coffey v. City of Walla Walla, 145 Wn. App. 435 (06/26/2008) [Appeal of comprehensive plan amendment] The city amended its comprehensive plan but did not change its zoning for a newly annexed area. The neighbors appealed the comprehensive plan amendment to superior court. On appeal the Court held that the superior court lacked jurisdiction to consider the appeal; the appeal should have been made to the Growth management Hearings Board.

• Comcast v. City of Seattle, 164 Wn.2d 35 (06/26/2008) - Taxation of cable services

  Comcast provides high-speed Internet service within the city. The city maintained that it could tax such service as a telephone utility, imposing a six percent tax. Comcast disagreed, and the court held that under the plain language of RCW 35.21.717 (a city or town may not impose any new taxes or fees specific to internet service providers) the city could not impose the telephone utility tax rate. Network telephone service does not include cable Internet service. The court added "a telephone business offering Internet services cannot be charged a telephone tax for those services, but may still be charged a telephone tax for providing telephone services -- just as Comcast may still be charged a cable television tax for providing cable television."

• Southwick v. Seattle Police Officers John Does, 145 Wn. App. 292 (06/23/2008) [1983 Action] Southwick was arrested by the Seattle Police. Southwick may have been injured during the time of his arrest, but the extent of his injury (collapsed lung) was not known for several days. Southwick sued the city under a federal 1983 action. The lawsuit was not filed until after the running of three years; prior to the filing of the lawsuit, however, the plaintiff filed a claim against the city and then waited 60 days to file suit. The lawsuit was dismissed as being untimely. Southwick contended that the statute of limitations was tolled during the 60-day claim filing period. On appeal the court affirmed the decision dismissing the lawsuit. There is no requirement that a claim be filed for a 1983 action, followed by a 60-day waiting period. Accordingly, the statute of limitation was not tolled and the suit failed for being filed after the statute of limitations had run.

• City of Wenatchee v. Owens, ___ Wn. App. ___ (06/19/2008) - Authentication of an ordinance

  The city's gambling tax ordinance, although it was signed by the mayor and city attorney, filed with the county, and codified, was not authenticated by the city clerk. Owens challenged the validity of the ordinance. The court held that the City clerk's duty to attest to or authenticate the Ordinance, pursuant to RCW 35A.12.130, was entirely ministerial. As a result, the clerk's failure to comply with the attestation requirement of RCW 35A.12.130 did not invalidate the Ordinance.

• Humbert v. Walla Walla County, 145 Wn. App. 185 (06/19/2008) - Appeal of hearing examiner's decision on conditional use permit

  A hearing examiner approved a conditional use permit for the operation of a rock quarry after extending a hearing to receive comments from the state, approving agreed to conditions between the applicant and the state, and limiting the approval to the first phase of the quarry operation. The applicant appealed. The court upheld the examiner's decision, concluding that the examiner could extend the time of the hearing to obtain comment from the state. It denied the appeal as to the conditions imposed, finding that the examiner was merely approving conditions the applicant had agreed to, applying the invited error doctrine; there also were specific impacts that would justify the conditions, regardless of the invited error doctrine. It was not error to approve the first phase of the operation; the examiner could have denied the project altogether. Conditions were only agreed to for the first phase and the applicant did not provide mitigation plans for the future phases.

• Milestone Homes v. City of Bonney Lake, 145 Wn. App. 118 (06/17/2008) - Subdivision approval

  Milestone sought to subdivide property it owned into 25 lots. However, the property it owned did not have sufficient area to make the proposed division and still meet city density requirements. To address this problem, Milestone included lots that were owned by others and had previously been approved as part of another subdivision. The city council did not approve the subdivision, but the superior court ruled in Milestone's favor. After appeal, the court reversed, holding that the city's ordinance was not ambiguous and that the proposed plat did not meet the city's code. Even if the code was ambiguous, the court would have ruled in the city's favor, giving preference to the council's interpretation and its intent to maintain larger lot sizes.

• Keep Watson Cutoff Rural v. Kittitas County, 145 Wn. App. 31 (06/05/2008) - LUPA appeal

  Keep Watson Cutoff Rural ("KWCR") filed a LUPA appeal against the county's decision to give a developer conditional approval to proceed with a cluster plot. RCW 36.70C.070(4) requires a party filing a LUPA petition attach a copy of the decision being appealed to the petition.; KWCR failed to do this and the county moved to have the appeal dismissed. A superior court judge granted the motion to dismiss, citing lack of jurisdiction because of KWCR failure to attach a copy of the decision being appealed. On appeal, the court of appeals reversed, concluding that while service and filing requirements are jurisdiction, the elements of a LUPA petition, even though statutorily required, are not jurisdictional requirements that divest a superior court of jurisdiction if not met. Additionally, KWCR had substantially complied with the requirements.

• Pierce County v. State of Washington, 144 Wn. App.783 (05/28/2008) - Mental health care

  The Court holds that the State Department of Social and Health Services (DSHS) is financially responsible for long-term care patients and that the DSHS incorrectly withheld liquidated damages from payments to the County when the County exceeded the bed space Western State Hospital had allocated to it. The Court also held that 2006 legislation (amendments to chapters 71.05 and 71.24 RCW) was constitutional. The Court also held that the County cannot count Western State Hospital's patients in meeting its 85 percent short-term care requirement and that the DSHS did not force the County to use Medicaid funds for non-Medicaid patients. Finally, the Court held that the County was entitled to prejudgment interest on the withheld liquidated damages award, but not the long-term care damages. (This is a long---70 pages---and somewhat complicated decision; interested persons are encouraged to review the case itself.)

• G-P Gypsum Corporation v. Washington State Department of Revenue, ___ Wn. App. ___ (05/20/2008) - Application of city use tax to natural gas

  Gypsum acquired natural gas at several at several locations outside of Tacoma for use within the city of Tacoma. Tacoma's utility tax was applied to Gypsum's purchase of gas. Gypsum argued that it should not be taxed for the use of the gas within Tacoma, since it first exercised dominion and control over the natural gas outside the city. The state argued that the tax applied in Tacoma, since that was the location where the gas was actually used in the manufacturing process. Citing the statute, the court held that the tax applied at the location where Gypsum first exercised its control over the tax, and that was outside the city.

• West v. Thurston County, ___ Wn. App. ___ (05/13/2008) - Public disclosure

  West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county's deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.

• Matia Contractors v. City of Bellingham, 144 Wn. App. 445, (05/05/2008) - Claims statute

  While there is a more recent court of appeals case to the contrary, the court followed the supreme court decision, Wilson v. City of Seattle, 122 Wn.2d 814 (1993), and held that the claim filing statute, chapter 4.96 RCW, applies only to tort claims. The court's decision reversed the trial court, which had concluded, based upon an earlier court of appeals decision, that decided that the claim filing requirements of chapter 4.96 RCW apply to all claims for money damages. Until changed by the supreme court, the holding in the Wilson decision stands.

• Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (04/24/2008) - Public records disclosure

  Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.

• Lawson v. City of Pasco, 144 Wn. App. 203 (04/24/2008) - Code enforcement/land use regulation

  Lawson allowed recreational vehicles to park in his residential mobile home park, contrary to city ordinance. Lawson was issued a violation notice and was ordered to remove them from his park. Lawson admitted to being in violation of the city ordinance, but maintained that state law -- the Manufactured/Mobile Home Landlord- Tenant Act, ch. 59.20 RCW -- preempted the city ordinance because the state law authorizes, if not requires, recreational vehicles used as a primary residence to be allowed in mobile home parks. While the state legislature intended to act in the field of regulating mobile home park landlord-tenant relationships, it did not wholly preempted local action in this field. The legislature expressly conferred concurrent jurisdiction to local municipalities in the field of regulating landlord-tenant compliance with ordinances; the state act did not preempt the local ordinance. The court also found that the ordinance's operation did not conflict with the state law; each could operate distinctly without inconsistency. The ordinance was not unconstitutional.

• Lallas v. Skagit County, 144 Wn. App. 114 (04/21/2008) - Torts: quasi-judicial immunity

  A deputy sheriff, removing a prisoner from the courtroom upon a judge's request, chose not to handcuff the prisoner. The prisoner bolted, ran, and collided with a court security officer, injuring the officer. The officer sued the county, arguing that the deputy sheriff was negligent by not handcuffing the prisoner. Was the deputy immune from liability because of quasi-judicial immunity? The court concluded that the deputy was not. Quasi-judicial immunity does not shield the deputy or her employer where the challenge was to the manner in which the order was carried out rather than the substance of the judge's order itself, which would have been immune.

• Storedahl & Sons v. Clark County, 143 Wn. App. 920 (04/08/2008) - Land use

  A hearing examiner approved of a rezone, and set out detailed findings of fact along with information on how the rezone criteria had been met. On appeal to the board of county commissioners, the rezone was overturned, although the board did not change the facts set out by the hearing examiner. On appeal, the court overturned the commissioners' decision. The Board failed to provide a statement listing the facts it found showing the appealed decision did not comply with applicable approval criteria. The court found that the hearing examiner's findings were binding, because the Board did not disagree with them. Because the Board did not disagree with any fact found by the examiner in determining that the rezone was consistent with the comprehensive plan and policies, the examiner's facts became verities and Storedahl was entitled to the requested rezone.

• Kitsap County v. Smith, 143 Wn. App. 893 (04/08/2008) - Privacy

  A county employee recorded numerous conversations with employees and citizens without the other parties' consent or knowledge and removed documents from his county office. The County filed a complaint for declaratory relief, injunctive relief, and damages, arguing that the employee "willfully and unlawfully recorded private and confidential conversations of County employees" without their knowledge or consent in violation of the Privacy Act, chapter 9.73 RCW, and that the employee had "willfully and unlawfully removed public records within the meaning of RCW 40.14.010 and RCW 42.56.010(2) from Kitsap County's custody and control." The trial court denied the declaratory judgment request, as well as the request for injunctive relief and damages for the asserted unlawful removal and retention of county public records. The court, on appeal, reversed and held that the Privacy Act issue involves a matter of major public importance and that there were issues of material fact related to the removal and retention of county records. The Court remanded the case to the trial court for the determination of whether a conversation with a public employee is a "private" or public conversation under the Privacy Act, 9.72 RCW and to determine who owns a public employee's own copies of work-related documents.

• York v. Wahkiakum School District, 163 Wn.2d 297 (03/13/2008) - Random drug test of student athletes

  Drug and alcohol abuse in schools was identified as a serious problem. To help combat the problem, the school district instituted a random drug test program for its student athletes. Athletes were subject to periodic, random urine tests. If tests proved positive, the student could be removed from student athletics, but the test results would not be reported to the police or be included in the student's record. A challenge was brought, arguing that such testing was prohibited under the state constitution (federal cases have upheld such testing under the federal constitution). The supreme court held that such testing was not performed under authority of law, that there was no "special needs" exception that would allow such testing without a warrant, and that the program violated article I section 7 of the state constitution.

• Storedahl Properties v. Clark County, 143 Wn. App. 489 (03/11/2008) - Stormwater regulation: tax or fee

  Under the federal Clean Water Act, due to the its population, the county was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit to deal with stormwater pollution. The county adopted a series of regulations to deal with stormwater and imposed fees to help pay for the costs of implementation. The plaintiff, Storedahl, challenged the fees, arguing that they were in fact taxes. Both the superior and appellate court disagreed. The fees satisfied the three-part test adopted by the court in Covell v. City of Seattle, 127 Wn.2d 874 (1995). The charge was found to be regulatory, a fact specifically noted in the language of the legislation. The proceeds of the fee are put in a special fund and used exclusively for various elements of the regulation. There was a relationship between the fee charged and the property owner's contribution to the stormwater problem.

• Ventenbergs v. City of Seattle, 163 Wn.2d 92 (02/21/2008) - Solid waste disposal

  May a city contract exclusively with two solid waste disposal firms, to the exclusion of other firms? Yes. The police power given cities by the constitution allows them to provide for and regulate solid waste disposal. Seattle's contracts for solid waste disposal with Robanco and Waste Management did not constitutional privileges and immunities provisions granted by the constitution because solid waste handling is governmental in nature, and the city's actions did not deny a fundamental right given to citizens. The regulations were reasonable. Bidding was not required under RCW 35.21.156.

• Washington Beef v. County of Yakima, 143 Wn. App. 165 (02/14/2008) - Valuation of property for tax purposes

  This case reviews the valuation of a beef slaughter, fabrication and storage facility for tax purposes. The court reviews the various ways that property can be valued, e.g., capitalization of income and market value, and concludes that the setting the value of assets for the purpose of assessing property taxes is more of an art than a science, and gave great deference to the conclusions reached by the county assessor. An excellent discussion of valuation methods.

• Champagne v. Thurston County, 163 Wn.2d 69 (02/14/2008) - Personnel Wage Administration

  Thurston County pays its employees for nonregular wages (e.g., overtime wages) at the close of the month subsequent to when the nonregular wages were earned. Champagne sued, arguing that the process violated the Washington Minimum Wage Act (WMA), chapter 49.46 RCW, wage payment act (WPA), chapter 49.48 RCW , and wage rebate act (WRA), chapter 49.52 RCW. The court concluded that the WRA was not violated because the the County did not act willfully; there was a bona fide dispute over payment of wages. There was no cause of action under the the MWA because the county had actually paid all wages due the employees. There was no action under the WPA since that act only provides for relief where an employer has made improper deductions at the time of termination

• Fitzpatrick v. Okanogan County, 143 Wn. App. 288 (01/22/2008) - Inverse Condemnation

  The plaintiffs suffered property damage following a flood; they alleged that the damage was result of the construction of a dike. The trial court dismissed the lawsuit and the plaintiffs appealed. In a split decision, the appeals court reversed and returned the case for trial. The common enemy rule, which allows landowners to repel surface waters to the detriment of their neighbors, does not apply when the landowner obstructs a watercourse or natural drainway or when the landowner obstructs riparian water from entering a flood channel. RCW 86.12.020, which authorizes counties to construct and maintain dikes and levees to protect against floods, does not provide immunity since the complaint alleges inverse condemnation.

• Resident Action Council v. Seattle Housing Authority, 162 Wn.2d (01/03/2008)- Constitutional law: Speech

  The Housing Authority adopted a rule prohibiting the placement of signs on the outside of the doors to residential housing units. A lawsuit was filed and the superior court held the rule unconstitutional as a violation of both the state and federal constitutions. On appeal a divided supreme court affirmed. The Court concluded that the Housing Authority had failed to meet its burden of justifying a restriction on speech. The Housing authority had argued that its rule was designed to avoid the cost of refinishing doors damaged by residents' signs. The Court noted that the Housing Authority could impose restrictions that would prevent damage to its doors by requiring the use of non-damaging materials. A total ban on signs was unnecessary to support the claimed interest. Aesthetics could not justify the ban either, as other restrictions were possible instead of a total ban. The ban violated the First Amendment protection of speech.

Related MRSC Resources

MRSC Index - Washington State Supreme Court
MRSC Index - Washington State Court of Appeals

Need more information?

Feel free to Ask MRSC. Washington cities, counties, and our contract partners can call or email MRSC for more information and advice - free of charge.