Citizens Alliance for Prop. Rights Legal Fund, Non-Profit Corp. v. San Juan Cnty.

• Decision Date: 28 April 2014
• Docket Number: No. 70606–3–I.,70606–3–I.
• Citation: 326 P.3d 730,181 Wash.App. 538
• Court: Washington Court of Appeals
• Parties: CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, A Washington non-profit corporation, Appellant, v. SAN JUAN COUNTY, a Washington and the San Juan County Critical Area Ordinance/Shoreline Master Program Implementation Committee, a subcommittee of the San Juan County Council, Respondents.

181 Wash.App. 538

326 P.3d 730

CITIZENS ALLIANCE FOR PROPERTY RIGHTS LEGAL FUND, A Washington non-profit corporation, Appellant,

v.SAN JUAN COUNTY, a Washington and the San Juan County Critical Area Ordinance/Shoreline Master Program Implementation Committee, a subcommittee of the San Juan County Council, Respondents.

No. 70606–3–I.

Court of Appeals of Washington,

Division 1.

April 28, 2014.

Dennis Dean Reynolds, Dennis D. Reynolds Law Office, Bainbridge Island, WA, Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, Stephanie Marshall Hicks, Marshall Hicks Law LLC, Bend, OR, Robert Harding Palmer III, City & Borough of Juneau, Juneau, AK, for Appellant.

Randall Keenan Gaylord, Amy Vira, San Juan County Prosecutor's Office, Friday Harbor, WA, for Respondents.

Katherine George, Harrison–Benis LLP, Seattle, WA, for Amicus Curiae on behalf of Allied Daily Newspapers of Washington.

Katherine George, Harrison–Benis LLP, Seattle, WA, for Amicus Curiae on behalf of Washington Newspaper Publishers Association.

Katherine George, Harrison–Benis LLP, Seattle, WA, for Amicus Curiae on behalf of Washington COAlition for Open Government.

SPEARMAN, C.J.

¶ 1 The central issue in this case is whether members of the San Juan County Council (the Council) violated the Open Public Meetings Act (OPMA) by attending a series of closed meetings as part of a working group known as the San Juan County Critical Area Ordinance/Shoreline Master Program Implementation Committee (CAO Team).¹ Citizens Alliance for Property Rights Legal Fund (CAPR) appeals the trial court's summary judgment dismissal of its lawsuit against San Juan County (the County) and the CAO subcommittee, arguing that the trial court misinterpreted and misapplied several key provisions of OPMA and erroneously ruled that there were no genuine issues of material fact. Finding no error, we affirm.

FACTS

¶ 2 In 2010, San Juan County began the process of updating its Critical Area Ordinances pursuant to the Growth Management Act, chapter 36.70A RCW. The CAO Team, which included members of the County executive staff as well as three of San Juan County's six councilmembers, was formed to facilitate and coordinate the County's efforts in this regard. The CAO Team did not open its meetings to the public.

¶ 3 In April 2012, San Juan County Prosecuting Attorney Randall Gaylord issued a memorandum advising the Council that “no meetings of three council members should occur without complying with the notice and other requirements of the Open Public Meetings laws.” Clerk's Papers (CP) at 452. Gaylord acknowledged that the law in this regard is uncertain, but opined that “[e]ven if the law is not clear, the better approach is to err on the side of following the Open Public Meetings Act.” CP at 452. The Council members followed Gaylord's advice and immediately discontinued this practice.²

¶ 4 Ten months later, the Council adopted four critical areas ordinances. Prior to adoption, the Council held approximately 75 public meetings to discuss the critical areas ordinance and provide opportunity for public comment. More than 30 of these meetings occurred after the CAO Team stopped meeting in April 2012.

¶ 5 In October 2012, CAPR filed a complaint against the County, the CAO Team, and Councilmembers Richard Fralick, Patty Miller, and Lovel Pratt, alleging that the CAO Team meetings violated the OPMA. CAPR requested (1) nullification of all actions taken in violation of OPMA; (2) civil penalties against each member that committed knowing violations of OPMA; (2) an award of costs and attorney fees; and (4) injunctions enjoining future violations of OPMA and the Growth Management Act. In an Amended Complaint filed in November 2012, CAPR non-suited its Growth Management Act injunction action, dismissed its claim against the individual Council members, and waived civil penalties.

¶ 6 The County moved for summary judgment, arguing that CAPR lacked sufficient evidence to support its case. CAPR submitted voluminous evidence in response. ³ In a letter decision, the trial court concluded that CAPR had failed to show that there was an issue of material fact regarding whether the CAO Team meetings violated the OPMA, and granted summary judgment to the County. The trial court also denied CAPR's subsequent motion for reconsideration.⁴ CAPR appeals.⁵

DISCUSSION

¶ 7 This court reviews an appeal from summary judgment de novo. Bostain v. Food Express, Inc., 159 Wash.2d 700, 708, 153 P.3d 846 (2007). Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Shoulberg v. Public Utility Dist. No. 1 of Jefferson Cy., 169 Wash.App. 173, 177, 280 P.3d 491 (2012), rev. denied,175 Wash.2d 1024, 291 P.3d 253 (2012).

¶ 8 “[A] party moving for summary judgment can meet its burden by pointing out to the trial court that the nonmoving party lacks sufficient evidence to support its case.” Guile v. Ballard Community Hosp., 70 Wash.App. 18, 21, 851 P.2d 689 (1993). “After the moving party meets its initial burden to show an absence of material fact, the inquiry shifts to the party with the burden of proof at trial....” West v. Thurston Cy., 169 Wash.App. 862, 866, 282 P.3d 1150 (2012)rev. denied,176 Wash.2d 1012, 297 P.3d 709 (2013). citing Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). “If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff:” Young, 112 Wash.2d at 225, 770 P.2d 182. “If, at this point, the plaintiff ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,’ then the trial court should grant the motion.” Young, 112 Wash.2d at 225, 770 P.2d 182, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Email exchange

¶ 9 “[T]he OPMA is a comprehensive statute, the purpose of which is to ensure that governmental actions take place in public.” Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1086 (9th Cir.2003). OPMA contains a strongly worded statement of purpose: “The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.” RCW 42.30.010. The statute mandates liberal construction to further its policies and purpose. RCW 42.30.910.

¶ 10 To enforce OPMA's civil penalty provision, plaintiffs must show (1) that a member of a governing body (2) attended a meeting of that body (3) where action was taken in violation of OPMA and (4) the member had knowledge that the meeting violated OPMA. Wood v. Battle Ground Sch. Dist., 107 Wash.App. 550, 558, 27 P.3d 1208 (2001). Where, as here, plaintiffs are not seeking to enforce the civil penalties provision, the fourth factor is inapplicable.⁶

¶ 11 OPMA provides that “[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” RCW 42.30.030. A “governing body” is “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” RCW 42.30.020(2). A “public agency” is “[a]ny county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington.” SeeRCW 42.30.020(1)(a). “Meeting” is defined as “meetings at which action is taken.” SeeRCW 42.30.020(4). “Action” means “the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations,reviews, evaluations, and final actions.” SeeRCW 42.30.020(3).

¶ 12 Clearly, the Council is the “governing body” of a “public agency.” However, under Washington case law, a gathering that includes less than a majority of the governing body does not violate OPMA. Wood, 107 Wash.App. at 564, 27 P.3d 1208, citing In re Recall of Beasley, 128 Wash.2d 419, 427, 908 P.2d 878 (1996) and In re Recall of Roberts, 115 Wash.2d 551, 554, 799 P.2d 734 (1990). At all times relevant to this case, the Council had six members. Therefore, a gathering that includes three councilmembers does not constitute a “meeting” of the Council for OPMA purposes, regardless of whether “action” is taken.

¶ 13 CAPR contends that on November 14, 2011, four of six councilmembers held a “meeting” in violation of OPMA by participating in an email and telephone exchange in which they discussed CAO Team matters. The trial court properly rejected this argument, both on the merits and because CAPR first advanced the argument in its motion for reconsideration. “[T]he OPMA does not require the contemporaneous physical presence of [members of the governing body] in order to constitute a meeting.” Eugster, 110 Wash.App. at 224, 39 P.3d 380. An exchange of emails can constitute a “meeting” for OPMA purposes. Wood, 107 Wash.App. at 564, 27 P.3d 1208. However, “the mere use or passive receipt of e-mail does not automatically constitute a ‘meeting.’ ” Wood, 107 Wash.App. at 564, 27 P.3d 1208. Viewed in the light most...