Doe v. Seattle Police Dep't

• Docket Number: 83700-1-I
• Decision Date: 26 June 2023
• Parties: JOHN DOES 1, 2, 4, 5, Appellants/Cross Respondents, v. SEATTLE POLICE DEPARTMENT and the SEATTLE POLICE DEPARTMENT OFFICE OF POLICE ACCOUNTABILITY, Respondents, JANE DOE 1 and JOHN DOE 3, Plaintiffs, and SAM SUEOKA, Respondent/Cross Appellant, JEROME DRESCHER, ANNE BLOCK, and CHRISTI LANDES, Respondents. Category Description Date * Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills Category RCW Description Date Enacted Materials Presented Recommendation Proposed Legislation & Related Bills
• Court: Washington Court of Appeals

1

JOHN DOES 1, 2, 4, 5, Appellants/Cross Respondents,

JANE DOE 1 and JOHN DOE 3, Plaintiffs,
v.
SEATTLE POLICE DEPARTMENT and the SEATTLE POLICE DEPARTMENT OFFICE OF POLICE ACCOUNTABILITY, Respondents,

and SAM SUEOKA, Respondent/Cross Appellant, JEROME DRESCHER, ANNE BLOCK, and CHRISTI LANDES, Respondents.

No. 83700-1-I

Court of Appeals of Washington, Division 1

June 26, 2023

OPINION

DWYER, J.

"There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price." Garrity v. State of New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Among these are the rights guaranteed by the First Amendment to our federal constitution. Garrity, 385 U.S. at 500. Police officers "are not relegated to a watered-down version of [such] rights." Garrity, 385 U.S. at 500.

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In this Public Records Act litigation, the trial court failed to heed this pronouncement. Accordingly, we reverse the trial court's order requiring disclosure of certain unredacted records. We affirm the ancillary orders of the trial court and remand the matter for further proceedings.

I

Soon after the United States Supreme Court pronounced that police officers are not condemned to a "watered-down version" of core constitutional rights, the voters of our state passed by popular initiative the predecessor to Washington's Public Records Act^[1] (PRA). See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 250-52, 884 P.2d 592 (1994) (PAWS) (noting approval of the public disclosure act in November 1972). Thus, since the day of the enactment of our state's public records law, police officers in Washington have been entitled to the same federal constitutional protections as are all other Washingtonians. It is by adherence to this principle that we decide this case.

We are presented today with the question of whether the Seattle Police Department (SPD) and the City of Seattle (the City) may disclose in investigatory records the identities of current or former Seattle police officers who were investigated regarding potential unlawful or unprofessional conduct during the events of January 6, 2021, in Washington, D.C. John Does 1, 2, 4, and 5 (the Does) sought judicial declaratory and injunctive relief after being informed that SPD, their employer, intended to publicly disclose the unredacted investigatory

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records in response to several PRA requests. Investigators have determined that allegations against the Does of unlawful or unprofessional conduct were "not sustained." The Does contend that their identities should thus not be disclosed in the requested records, which include transcripts of interviews in which they were compelled to disclose and discuss their political beliefs and affiliations.

The trial court denied the Does' motion for a preliminary injunction, concluding that the exceptions to permitted disclosure set forth in the PRA are inapplicable. The Does appealed from the trial court's order. In addition, Sam Sueoka, a member of the public who filed a records request to obtain copies of the investigatory records, cross appealed, asserting that the trial court erred by permitting the Does to proceed pseudonymously in this litigation.

The United States Supreme Court has recognized a First Amendment right to privacy that protects against state action compelling disclosure of political beliefs and associations. Thus, only if the state actor (here, the City) demonstrates a compelling interest in disclosure, and that interest is sufficiently related to the disclosure, can the state actor lawfully disclose the Does' identities in the investigatory records. Because there is here established no compelling state interest in disclosing the Does' identities, the trial court erred by denying the Does' motion for a preliminary injunction.

The trial court properly concluded, however, that the Does should be permitted to use pseudonyms in litigating this action. Because the Does assert a First Amendment privacy right, it is federal constitutional law-not state law-that controls their request to litigate pseudonymously. Pursuant to federal First

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Amendment open courts jurisprudence, plaintiffs may litigate using pseudonyms in circumstances wherein the injury sought to be prevented by prevailing in the lawsuit would necessarily be incurred as a result of the compelled disclosure of the plaintiffs' identities, required as a condition of commencing the very lawsuit in which vindication of the constitutional right is sought. Accordingly, the Does may remain anonymous in this action.

II

The Does are current or former SPD officers^[2] who attended former President Donald Trump's "Stop the Steal" political rally on January 6, 2021 in Washington, D.C. Upon returning to Washington State, the Does received complaints from SPD's Office of Police Accountability (the OPA) alleging that they might have violated the law or SPD policies during their attendance at the rally.

The Does thereafter submitted to OPA interviews in which they were "ordered to answer all questions asked, truthfully and completely," and informed that "failure to do so may result in discipline up to and including termination." In addition to inquiring regarding the Does' whereabouts and activities on January 6, the OPA also inquired regarding their political beliefs and associations, including whether they attended the rally "to articulate [their] political views," whether they were "affiliated with any political groups," and "[their] impressions of, and reactions to, the content of the Rally." Because the Does were under

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standing orders to do so, they answered these questions "truthfully and as completely as possible."

Sueoka and other members of the public submitted records requests pursuant to the PRA, chapter 42.56 RCW, seeking disclosure of the investigatory records pertaining to police officers who participated in the events of January 6, 2021, in our nation's capital. In response to the records requests, SPD informed the Does that it intended to disclose both records regarding its ongoing investigation and the Does' personnel files.

On February 23, 2021, the Does filed a complaint for declaratory relief and preliminary and permanent injunction in the trial court.^[3] They concurrently filed a motion for permission to proceed pseudonymously and a motion for a temporary restraining order (TRO) and order to show cause why the preliminary injunction should not issue.

On February 24, 2021, the trial court granted the Does' motion for a TRO, enjoining production of the requested records until a show cause hearing was held. On March 9, 2021, the trial court granted the Does' motion to proceed pseudonymously, ruling that the order would "remain in effect at least until the merits of Plaintiffs' PRA claims are resolved."

Following the show cause hearing, held on March 10, 2021, the trial court denied the Does' motion for a preliminary injunction. The Does sought review of the trial court's ruling in this court, and review was granted. Sueoka thereafter

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moved to transfer the cause to our Supreme Court. Then, on June 28, 2021, the OPA concluded its investigation. The OPA determined that allegations that the presently-litigating Does had violated the law or SPD policies or had engaged in unprofessional conduct were "not sustained."

On August 4, 2021, our Supreme Court granted Sueoka's motion to transfer the cause to that court. However, following oral argument on November 9, 2021, the court determined that, "in light of changed circumstances," review of the preliminary injunction was moot. The court dismissed review of the matter and remanded the cause to the trial court for further proceedings.

The trial court proceedings at issue herein then commenced. On January 5, 2022, Sueoka filed a "motion to change the case title and bar the use of pseudonyms." On January 12, 2022, the Does filed an additional motion for a preliminary injunction, again requesting that the trial court redact their identities in any disclosed records.^[4]

Following a January 28, 2022 hearing, the trial court again denied the Does' motion for a preliminary injunction, ruling that the Does had not "met their burden of proof that they have a privacy right that falls within an exemption under the [PRA]." The court additionally concluded that the record contains "insufficient evidence" that disclosure will cause the Does to "experience a level of harassment that will result in a chilling effect on their First Amendment rights."

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The trial court also denied Sueoka's motion to preclude the Does from proceeding in pseudonym.

The Does appeal from the trial court's order denying their motion for a preliminary injunction. Sueoka cross appeals, asserting that the trial court erred by denying his "motion to change the case title and bar the use of pseudonyms." Sueoka also requests that we change the case title and bar the use of pseudonyms in this appeal.

III

The Does assert that the trial court erred by determining that they were unlikely to succeed on the merits of their claim that their identities are exempt from disclosure in the requested records and, accordingly, denying their motion for a preliminary injunction precluding such disclosure. We agree. The First Amendment, made applicable to the states though the due process clause of the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), confers a right to privacy in one's political beliefs and associations that may be impinged only on the basis of a subordinating state interest that is compelling.

Our Supreme Court's decisional authority, the profusion of legislatively enacted exceptions to disclosure, and the policy underlying the PRA indicate that there is no compelling state interest in disclosing to the public the identities of public employees against whom unsustained...