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Recent Appellate Decisions – September 21 to September 27, 2012

Selected summaries prepared by Commissioner James Verellen (ret.)

Washington Supreme Court

September 27, 2012

Koenig v. Thurston County No. 84940-4

Public Records Act – investigative records exception – victim impact statements – special sexual offender sentencing alternative (SSOSA) evaluation

In July 2000, Lerud pleaded guilty to eight counts of voyeurism.  The record included a victim impact statement submitted by a victim for consideration by the sentencing court.  Because the plea agreement included a SSOSA sentencing alternative recommendation, the record also included a SSOSA evaluation used to assess whether Lerud was amenable to treatment and whether he could be safely treated in the community.

In August 2000, K sent a public records request to the Thurston County Prosecutor’s Office and Clerk’s Office for documents related to the prosecution of Lerud.  The County provided K with a document package that excluded the victim impact statement and SSOSA evaluation.  In 2004, K filed a public disclosure complaint against the County and the prosecutor.  In 2007, the trial court ruled that both the victim impact statement and the SSOSA evaluation were exempt as investigative records.  Division II concluded that the victim impact statement was exempt, but the SSOSA evaluation was not.

The Washington Supreme Court (6-3) concluded that neither the victim impact statement nor the SSOSA evaluation fall within the investigative records exemption:

  • The statutory investigative records exemption is designed to protect the integrity of law enforcement investigations.  “To be exempt under this provision (1) the record must be investigative in nature; (2) the record must be compiled by an investigative, law enforcement, or penology agency; and (3) it must be essential to law enforcement or essential to the protection of privacy.”
  • The investigation must be “one designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.”
  • “A victim impact statement is properly understood as a communication between a victim and the court, not as an investigative record compiled by an investigative, law enforcement, or penology agency.”
  • “Because the victim impact statement is not part of a prosecutor’s investigation into criminal activity or alleged malfeasance, the investigative records exemption does not apply.”
  • A SSOSA evaluation is a useful tool after a criminal investigation has been conducted, but it is not prepared in an effort to “ferret out criminal activity” or to “shed light on some other allegation of misfeasance.”
  • “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 misfeasance.”

Perez-Garias v. Global Horizons, Inc. No. 86793-3

farm labor contractors act (FLCA) – remedies – statutory damages – discretion – due process – public policy – aggrieved party

The FLCA attempts to protect farm workers against exploitation by farm labor contractors who act as intermediaries between farm workers and farmers.  If a contractor is found to violate the FLCA then the court “may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of five hundred dollars per plaintiff per violation, whichever is greater, or other equitable relief.” (emphasis added)

Here, the district court found violations of the FLCA and initially awarded statutory damages of $500 per plaintiff per violation for a total award of $1,857,000.  On reconsideration, the district court concluded it had the discretion under the FLCA to award no damages or to award an amount between $0 and $500 per plaintiff per violation.  After a bench trial on damages, the court awarded statutory damages of $235,000.

The Ninth Circuit Court of Appeals certified three questions to the Washington Supreme Court:

1) whether a trial court awarding statutory damages under the FLCA must award $500 per plaintiff per violation?

2) does requiring a trial court to award $500 per plaintiff per violation violate due process or public policy?

3) does the FLCA allow statutory damage awards to persons who have not been shown to be aggrieved by a particular violation?

The Washington Supreme Court (9-0) answers 1) yes, 2) no (limited to state due process principles and statutes), and 3) decline to answer because Washington standing principles track the U.S. Supreme Court standards that the Ninth Circuit can resolve:

  • The civil damages provision of the FLCA can either be read as creating a floor of $500 per plaintiff per violation in all cases (the Workers’ reading) – OR – creating a ceiling of $500 per plaintiff per violation if the court chooses to award statutory damages (the Growers’ reading).
  • “[T]he Workers’ reading largely ignores the apparent discretion afforded a trial court by the language “up to and including.”  “[U]nder the Growers’ reading, the ‘whichever is greater’ language is rendered gratuitous.”
  • “The civil remedies provision was enacted to compensate injuries, promote enforcement of the FLCA, and deter violations.  The provision permits trial courts to promote these goals through liquidated damages awards in the event that actual damages are difficult or impossible to measure or prove.”
  • “The Workers’ reading more firmly upholds the statute’s purposes and is therefore the better reading.  We hold a court choosing to award statutory damages under RCW 19.30.170(2) must award statutory damages of $500 per plaintiff per violation.”
  • “We find nothing in either Washington case law or the statutes to support capping an award of damages under these circumstances…We hold no state public policy or due process principles require reduction in the total damages mandated by statute.”  The Ninth Circuit can address principles of federal due process.
  • Whether a person is “aggrieved” under the FLCA can be resolved by the Ninth Circuit “based on its standing jurisprudence and the standing jurisprudence of the United States Supreme Court.”

Division II Washington State Court of Appeals

September 25, 2012

Clark County v. Rosemere Neighborhood Ass’n. No. 41833-9

admin law – storm water management – flow control and structural retrofit – agreed order not similar or equal to permit requirements – vesting

In 2007, the Washington Department of Ecology issued a municipal storm water permit (Permit) that applies to Clark County.  The permit required the County to create a storm water management program by August 16, 2008, including a flow control program that matches “historical” discharge levels for the property.  In 2009, the County adopted storm water ordinances.  Ecology found the ordinances inadequate.  Ecology and the County entered into an Agreed Order that, effective April 13, 2009, required developers to mitigate only for increased storm water flow caused by their development and obligating the County to further mitigate to historic levels.  The Agreed Order also allowed the County to mitigate using comparable locations other than the property being developed.  Rosemere Neighborhood Association and others challenged the Agreed Order before the Pollution Control Hearings Board.

The Board found that: the alternative program in the Agreed Order was not “equal or similar” to the Permit requirements; there is a gap between the Permit’s effective date (August 16, 2008) and the Agreed Order’s vesting date (April 13, 2009), but the Permit’s flow control conditions are not subject to Washington’s vesting law; and the Agreed Order fell short of the Permit requirements because there was no provision for low impact development methods.  The County and the Building Industry Association of Clark County appealed the Board’s decision to Division II.

Division II affirmed the Board:

  • “Because the Board retains an implicit power to decide all issues necessary to effectively execute its power, we hold that the Board did not overstep its jurisdiction or authority in addressing [low impact development techniques, reductions in structural retrofit efforts, and the vesting gap] issues.”
  • Developers who apply during the gap period may not be subject to more onerous burden of mitigating to historic levels. The Board’s reversal of the Agreed Order did not immediately change the law to the more onerous Permit standards.
  • “Because the record is insufficient to determine whether the County will ultimately enact ordinances that could violate vesting principles, and the Permit itself does not have the force of law in the County, we decline to address the legal vesting issue further.”
  • “Deferring to Ecology does not mean, as the County suggests, that the Board must accept Ecology’s experts’ opinions without weighing them against contrary expert testimony.”  “[W]e hold that the Board did not exceed its authority in disagreeing with Ecology’s opinions.”
  • The Board did not act arbitrarily and capriciously.
  • Sufficient evidence supports the Board’s findings.

Matheson v City of Hoquiam and Dept. of Natural Resources No. 41181-4

Admiralty – jurisdiction – preemption – Derelict Vessel Act – police power

The Department of Natural Resources and the City of Hoquiam seized an inoperable 1943 tugboat under the Washington Derelict Vessel Act.  The owner filed a lawsuit.  DNR hired a marine surveyor who concluded the tugboat was unseaworthy and potentially hazardous, it posed a significant danger to the environment, and its only possible commercial value was as scrap.  The trial court granted summary judgment allowing DNR to dispose of the tugboat.  After the boat was demolished, the court conducted a trial to determine damages.  The trial court awarded DNR and the City a judgment of $804,643.95.

The owner appealed arguing that the superior court lacked subject matter jurisdiction for an in rem action against the vessel and the superior court failed to follow the requirements under the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.

Division II affirmed the trial court:

  • “Under the ‘saving to suitors’ clause, concurrent jurisdiction extends to a state court enforcing a personal judgment against the defendant, even if, in the course of enforcing that judgment, the court orders the defendant’s vessel to be sold.”
  • But there are exceptions to concurrent jurisdiction; “federal courts have exclusive admiralty jurisdiction over proceedings that begin and are carried out in rem, where a vessel itself is treated as the offender and named as the defendant in order to enforce a right under federal admiralty law.”   “[S]tate courts cannot provide a remedy in personam that ‘works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.’”
  • “Here, the DNR and Hoquiam validly exercised their police power to abate a public nuisance and to protect the safety and general welfare of the public under [the] Derelict Vessel Act.”
  • “Although our state Derelict Vessel Act permits destruction of the res, namely a derelict vessel, the Act addresses public safety; and the exclusive federal maritime jurisdiction statutory framework does not clearly state congressional intention to supersede the state’s exercise of their inherent police power to abate such public nuisances.”

Estate of Toland No. 42187-9

probate – TEDRA – interested party – parent of sole heir –  domestic relations – Japanese dissolution – comity

Paul and Etsuko married in Japan.  Their daughter Erika was born in Japan in 2002.  A Japanese court finalized a divorce decree in 2006, dividing their property, awarding Etsuko custody of the daughter, ordering Paul to pay child support, and awarding damages to Etsuko for Paul’s fault in the divorce.   Erika lived with Etsuko in Japan until Etsuko’s death in 2007.  Etsuko’s mother was appointed guardian of Erika, but Paul was not given any notice of that proceeding.  Etsuko’s sister petitioned to probate Etsuko’s estate in Pierce County Superior Court.  Paul filed a TEDRA petition to intervene.  The trial court granted the estate summary judgment dismissing Paul’s petition, effectively excluding Paul from the case.

In a separate action, the Estate sought to collect on the judgments awarded in the Japanese divorce decree.  The Estate applied to register the Japanese divorce decree as a foreign judgment, ultimately arguing that the divorce decree should be given comity consistent with the Uniform Foreign-Country Money Judgments Recognition Act (RCW 6.40).  The trial court refused to grant comity to the Japanese decree because Paul had not been given notice of the guardianship proceeding and the chances Paul could prevail in a custody action in Japan were “slim to none.”

Paul appealed the trial court order dismissing his petition to intervene in the probate.  The Estate appealed the order refusing to grant comity to the Japanese divorce decree.

Division II reversed the order dismissing Paul’s petition to intervene and affirmed the order refusing to grant comity to the Japanese decree:

  • Under TEDRA, a party includes “any other person who has an interest in the subject of the particular proceeding.”  Paul “certainly has an interest in ensuring that the Estate is efficiently administered and that the funds it collects go to Erika.”
  • “Although Paul does not currently have custody of Erika and may be considered an estate debtor, these facts do not preclude him from being an ‘interested party’ under the statute.”  A possible conflict of interest does not preclude Paul participating in the Estate.  “Paul and the Estate have a dispute as to whether Paul should be paying judgments that would benefit Erika.  Giving Paul a voice in resolving that dispute is more likely to resolve the issues that is denying him any participation.”
  • “Because TEDRA was intended to be broadly applied, and because Paul is the father of the sole minor heir to the Estate, we hold that Paul is an ‘interested party’ under the statute.”
  • “[U]nder the doctrine of comity, courts have discretion to ‘give effect to the laws [and resulting judicial orders] of another jurisdiction out of deference and respect, considering the interests of each [jurisdiction].’”
  • “Comity does not require us to enforce a valid foreign judgment where it is ‘so contrary to the laws ‘ of Washington that enforcing the foreign judgment would seriously interfere with our own policy or laws.”
  • The Japanese guardianship proceeding and Japanese law nullify the parent-chlld relationship explicitly recognized under Washington law:  Paul was not given notice and opportunity to participate in the guardianship; Japanese courts afford no presumption that the biological parent should be given custody; Japanese law does not include any process for enforcing a custody decree; Japanese courts do not recognize the substantive due process right of a parent; and Paul’s chance of actually obtaining custody in the Japanese courts is “slim to none.”
  • “We are satisfied that enforcing the Japanese divorce decree would violate Paul’s procedural due process right to notice and opportunity to be heard, Washington’s policy protecting the parent-child relationship, and Paul’s substantive due process right as a parent.”  The trial court did not err in declining to grant comity to the Japanese divorce decree

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