Ames v. Pierce Cnty.

• Decision Date: 17 May 2016
• Docket Number: No. 45880–2–II.,45880–2–II.
• Citation: 194 Wash.App. 93,374 P.3d 228
• Parties: Michael AMES, Appellant and Cross–Respondent, v. PIERCE COUNTY, Respondent and Cross–Appellant.
• Court: Washington Court of Appeals

194 Wash.App. 93

374 P.3d 228

Michael AMES, Appellant and Cross–Respondent

v.PIERCE COUNTY, Respondent and Cross–Appellant.

No. 45880–2–II.

Court of Appeals of Washington, Division 2.

May 17, 2016.

Joan Kristine Mell, III Branches Law PLLC, Fircrest, WA, for Appellant/Cross–Respondent.

Michael Alexander Patterson, Patterson Buchanan Fobes Leitch PS, Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, Seattle, WA, for Respondent/Cross–Appellant.

JOHANSON

, J.

Michael Ames appeals the trial court's CR 12(b)(6)

dismissal of his claims for a writ of prohibition and declaratory judgment. Ames argues that he is entitled to (1) a writ of prohibition because the Pierce County Prosecuting Attorney's Office (PCPAO) acted outside its jurisdiction and (2) a declaratory judgment because a justiciable controversy exists and, in the alternative, this case presents an issue of major public importance. Pierce County cross appeals, arguing that the trial court abused its discretion when it granted Ames's motion for reconsideration, reversing its CR 11 sanctions order against Ames.

¶ 2 We hold that Ames failed to state claims for (1) a writ of prohibition because he does not allege facts that demonstrate the PCPAO acted outside or in excess of its jurisdiction and (2) a declaratory judgment because this controversy is not justiciable nor is this an issue of major public importance. Regarding the County's cross appeal, we hold that the trial court did not abuse its discretion when it concluded that Ames's claims are not baseless because he argued for a good faith extension of the law and supported it with a reasonable inquiry into relevant precedent. We affirm.

FACTS

I. Summary of Background Facts

¶ 3 Michael Ames was a detective with the Pierce County Sheriff's Department (PCSD). He was a recurring government witness for the State in criminal prosecutions. The instant case arose when the PCPAO sent Ames a letter dated September 18, 2013 stating that several of Ames's “Dalsing ” declarations and the “Coopersmith” report would be disclosed to defense counsel as potential impeachment evidence in the prosecution of State v. George and in any other case where Ames was expected to testify.¹ Ames disagreed that the Dalsing declarations and the Coopersmith report should be disclosed to defense counsel as potential impeachment evidence.

¶ 4 Ames filed this lawsuit, requesting a writ of prohibition to generally prohibit the PCPAO from disclosing these materials as potential impeachment evidence and an order declaring that his Dalsing declarations were truthful and not properly characterized as potential impeachment evidence under Brady.² Specifically, Ames requested the following relief:

5.1 A trial by jury of any factual disputes pursuant to RCW 7.24.090

;

5.2 A writ of prohibition ordering defendant to cease and desist with any further communications that the materials identified in [the PCPAO's] letter of September 18th are impeachment evidence or potential impeachment evidence;

5.3 An order declaring the materials identified in [the PCPAO's] letter of September 18th are not impeachment evidence or potential impeachment evidence;

5.4 An award of attorney's fees and costs to Det. Ames under equitable theories to include good faith and fair dealing, or any other applicable statute or doctrine;

5.5 For such other and further relief as the court deems just and equitable.

Clerk's Papers (CP) at 10–11.

¶ 5 The trial court denied Ames's request for the writ of prohibition and for a declaratory judgment on a CR 12(b)(6)

motion. Ames appeals.

A. The Dalsing Case

¶ 6 In December 2010, Lynn Dalsing was arrested and charged with several child pornography-related offenses. Dalsing's attorney sought photographic and computer evidence that allegedly were the bases of the charges against Dalsing. Ames was the PCSD's forensic computer examiner. In June 2011, Ames e-mailed the lead detective on the Dalsing case that there was no evidence on any of the computers to link Dalsing to the crimes. That same day, the lead detective forwarded Ames's opinion to Deputy Prosecuting Attorney Timothy Lewis, but the PCPAO did not disclose this exculpatory information until over a month later when the PCPAO dropped the charges and released Dalsing.

¶ 7 In March 2012, Dalsing filed a civil complaint against the County, claiming that the PCPAO's and the PCSD's actions amounted to false arrest and malicious prosecution. In Dalsing's civil case, Ames filed four declarations to support his various motions for costs and attorney fees he incurred. Ames had hired his own attorney during the Dalsing civil case because he believed that his interests, i.e., disclosing his involvement with the Dalsing criminal investigation and sending e-mails to the lead detective, conflicted with the County's interests in the civil case, such as denying misconduct from the PCPAO and avoiding liability. In his declarations, Ames stated that (1) prior to his deposition in Dalsing's civil case, he did not know the PCPAO had never disclosed his e-mails to the lead detective to Dalsing, (2) he wanted to tell the truth about the e-mails because the PCPAO's decision not to disclose them was “not in [Ames's] best interest,” and (3) the deputy prosecutor told him not to answer Dalsing's deposition questions about the e-mails. CP at 546.

¶ 8 In response to Ames's motions for attorney fees and costs, Deputy Prosecutor James Richmond³ declared that Ames's declarations contained “false assertions.” CP at 577. Specifically, Richmond declared that contrary to Ames's declaration, at their October 2012 meeting, Ames did not give the e-mails at issue to Richmond; they did not discuss whether there were “supposedly ‘exculpatory’ e-mails or that Mr. Ames was aware of information that would be considered exculpatory”; and Richmond did not say that there was an “e-mail [that] would ‘clear [Ames] of any wrong doing in the case’ ” or that Richmond would see that such e-mails were “ ‘turned over as part of discovery.’ ” CP at 577. Richmond stated that Ames was not a party to the “numerous communications [exchanged] about plaintiff's discovery requests and Pierce County's objections and responses” and that when he met with Ames again in February 2013, contrary to Ames's declaration, they did not discuss or review county e-mails. CP at 577.

¶ 9 Regarding Ames's deposition, Richmond denied that Ames asked him (Richmond) about whether what happened in the deposition would have any repercussions for Ames or expressed concern about Richmond's advice not to answer questions. Richmond also denied that Ames ever expressed that he thought the County's assertion of work product protection of e-mails was erroneous or having been concerned that he was being prevented from clearing his name, the name of the PCSD, or from testifying truthfully. Richmond also stated that contrary to Ames's declaration, Ames sought the advice of independent counsel two months before the deposition, not after the deposition.

B. The Coopersmith Report

¶ 10 Also in 2012, a student alleged that he had been bullied at a local school and that a teacher had participated in the bullying. The attorney who represented the student's parents had also represented Ames in a recent dispute with the PCSD. The attorney tried to contact the head of the PCSD's special assault unit but eventually contacted Ames, who went to the attorney's office to take a report from the parents. The head of the special assault unit investigated the bullying allegations and forwarded the results of her investigation to the PCPAO, who declined to prosecute.

¶ 11 The PCPAO released a long, detailed statement to the media explaining its decision and mentioning Ames's personal relationship with the attorney who “initiated” the investigation, though not naming Ames directly. Around the same time, the PCSD reviewed Ames's e-mails to see if he had any contact with the parents' attorney to determine whether Ames's involvement with the investigation presented a conflict. The PCSD found no suspicious e-mails.

¶ 12 Based on the PCPAO's “handling of the [school] Case,” the PCPAO's press release, and the PCSD's search of his e-mails, Ames filed a complaint alleging retaliation and misconduct. CP at 450. That complaint was forwarded to the County's human resources department, who hired Jeffrey Coopersmith, an outside civil attorney, to conduct an independent investigation. Coopersmith's report found that there was “no merit” to Ames's retaliation allegations, that the PCSD and the PCPAO handled the school bullying case properly, and that there is “no evidence that Det. Ames acted in anything other than good faith.” CP at 485, 469.

C. The George Case

¶ 13 In September 2013, the PCPAO sent Ames a letter explaining that it planned to disclose “potential impeachment evidence” regarding Ames in the George case. CP at 858. Specifically, the letter said that the PCPAO had four signed declarations from Ames regarding Dalsing that contained assertions that were disputed by Richmond, the deputy prosecuting attorney in that case in another signed declaration. The letter also said that the PCPAO had the Coopersmith report. The letter concluded by stating that the PCPAO intended to release Ames's and the prosecuting attorneys' declarations and the Coopersmith report to defense counsel as potential impeachment evidence in its prosecution of Dmarcus George.

¶ 14 The declarations, which included a signed statement by Richmond, were disclosed to George's attorney. The trial court had a hearing to discuss whether the PCPAO must disclose the Coopersmith report. The deputy prosecutor argued for an in camera review of the Coopersmith report to determine whether it was potential impeachment evidence, and Ames argued that a determination whether the report was potential impeachment evidence should be made by writ of prohibition and declaratory relief, but ultimately conceded that the report was likely discoverable as a public record.

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