Eubanks v. Brown

• Decision Date: 19 June 2014
• Docket Number: No. 88021–2.,88021–2.
• Citation: 180 Wash.2d 590,327 P.3d 635
• Court: Washington Supreme Court
• Parties: Robin EUBANKS and Erin Gray, Respondents, v. David BROWN, individually and on behalf of his marital community, Petitioner, and Klickitat County, Klickitat County Prosecuting Attorney's Office, Defendants.

180 Wash.2d 590

327 P.3d 635

Robin EUBANKS and Erin Gray, Respondents,

v. David BROWN, individually and on behalf of his marital community, Petitioner,andKlickitat County, Klickitat County Prosecuting Attorney's Office, Defendants.

No. 88021–2.

Supreme Court of Washington, En Banc.

June 19, 2014.

Michael Early Mcfarland Jr., Attorney at Law, Spokane, WA, for Petitioner.

Francis Stanley Floyd, Floyd Pflueger & Ringer PS, Seattle, WA, for Defendant.

Philip Albert Talmadge Talmadge/Fitzpatrick, Emmelyn Hart, Lewis Brisbois Bisgaard & Smith, Seattle, WA, Thomas Stephenson Boothe, Attorney at Law, Portland, OR, for Respondent.

FAIRHURST, J.

¶ 1 Petitioner David Brown seeks review of a Court of Appeals published opinion holding that venue for this sexual harassment suit was proper in Clark County. Brown argues that RCW 4.12.020(2) requires that suits against public officers for acts done “in virtue of his or her office” proceed in the county where the acts occurred. In this case, Brown claims the suit brought against him must proceed in Klickitat County. We affirm venue is proper in Clark County because we hold that the acts alleged in this complaint were not “in virtue of” Brown's public office under RCW 4.14.020(2).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 Respondents Robin Eubanks and Erin Gray allege Brown engaged in sexual harassment against them. From September 2007 to July 2010 Brown was a deputy prosecuting attorney in the Klickitat County Prosecuting Attorney's Office (Prosecutor's Office) where he supervised administrative assistants Eubanks and Gray.

¶ 3 The complaint alleges that Brown engaged in the following inappropriate actions toward Eubanks:

(1) [S]itting in their shared office with his pants unzipped and legs spread open upon his desk on a regular basis; (2) staring at Ms. Eubanks for unusually long periods of time while Ms. Eubanks was attempting to work; (3) licking his lips constantly while he was talking to Ms. Eubanks; (4) following her around the office; (5) positioning himself so that Ms. Eubanks would need to rub against his body as she left their office; (6) closing the door on the office when they were in the small office space together; and (7) giving gifts to Ms. Eubanks, even though she made it clear she did not want to accept them.

Clark County Clerk's Papers (CCP) at 10. Further, the complaint alleges that Brown engaged in the following inappropriate actions toward Gray:

(1) [S]taring at Ms. Gray's breasts during the conversations with her several times daily; (2) staring at Ms. Gray for unusually long periods of time while Ms. Gray was trying to work at her desk in her office; (3) licking his lips constantly while he was talking to her, as well as following her around the office; (4) positioning himself so that Ms. Gray, who was pregnant at the time, would need to rub against [his] body as she left the front door to the office; (5) hanging around outside Ms. Gray's office for unusually long periods of time doing nothing other than breathing heavily.

CCP at 12.

¶ 4 Eubanks and Gray (hereinafter Eubanks) filed this suit against Brown in his individual capacity, the Prosecutor's Office, and Klickitat County in Benton County Superior Court. Eubanks mistakenly believed that RCW 36.01.050, which governs venue for suits against a county, allowed for venue in any neighboring county, rather than the two nearest judicial districts. Upon realizing it was only the two nearest judicial districts, Eubanks moved to transfer venue to an appropriate county, Clark County Superior Court. Brown responded, claiming that under RCW 4.12.020(2), only Klickitat County Superior Court was an appropriate venue for the claims against him. However, his response did not request a change of venue to Klickitat County Superior Court or ask the Benton County Superior Court to deny the transfer of venue to Clark County Superior Court. Benton County Superior Court granted the motion to transfer venue to Clark County Superior Court.

¶ 5 After the change of venue to Clark County Superior Court, Brown moved for a dismissal or a change of venue to Klickitat County Superior Court based on RCW 4.12.025(1) and RCW 4.12.020(2). He argued that venue was proper in Klickitat County Superior Court because he resided there and, alternatively, because the alleged tortious acts occurred in virtue of his public office and took place there. Clark County Superior Court denied Brown's motion to dismiss or motion to change venue on both grounds. The Court of Appeals affirmed. Brown moved for discretionary review, which we granted. Eubanks v. Brown, 176 Wash.2d 1026, 301 P.3d 1047 (2013).

II. ISSUE PRESENTED

¶ 6 Do Eubanks' claims against Brown involve acts done in virtue of his public office under RCW 4.12.020(2), thus requiring venue in Klickitat County?

III. ANALYSIS

A. Venue depends on whether RCW 4.12.020(2) applies to this case

¶ 7 The initial choice of venue belongs to the plaintiff. Hatley v. Saberhagen Holdings, Inc., 118 Wash.App. 485, 488–89, 76 P.3d 255 (2003) (noting this concept is a “well-established principle”). If initial venue is not proper as to the defendant, the defendant may either waive their objection to the erroneous venue by failing to object or move to transfer the case to where venue is proper. See, e.g., Youker v. Douglas County, 162 Wash.App. 448, 459–60, 258 P.3d 60 (2011). If the defendant objects, the case must be transferred to a court with proper venue. See, e.g., Roy v. City of Everett, 48 Wash.App. 369, 372, 738 P.2d 1090 (1987). Venue in Benton County Superior Court was not proper as to Brown, and he objected. After the case was transferred to Clark County Superior Court, Brown again objected and moved to change venue. Because Brown objected, the court must make the determination where venue is proper.

¶ 8 Proper venue is governed by statute in Washington. Parker v. Wyman, 176 Wash.2d 212, 222, 289 P.3d 628 (2012). There are two venue statutes that might apply to this case, RCW 4.12.020(2) and RCW 36.01.050. RCW 4.12.020(2) applies to certain types of suits against public officials. It provides, in relevant part:

Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose:

....

(2) Against a public officer, or person specially appointed to execute his or her duties, for an act done by him or her in virtue of his or her office, or against a person who, by his or her command or in his or her aid, shall do anything touching the duties of such officer.

RCW 4.12.020. If this statute applies, venue is mandatory in the county where the cause arose.¹

¶ 9 The other statute involved, RCW 36.01.050, is applicable to all cases in which a county is a defendant. It authorizes proper venue over a county defendant in “the superior court of such county, or in the superior court of either of the two nearest judicial districts.” RCW 36.01.050(1). If venue is not mandatory in the county where the cause arose based on RCW 4.12.020(2), then it is proper in the defendant county or either of the two nearest judicial districts.

¶ 10 Consequently, this court must first determine whether RCW 4.12.020(2) applies. If it does, venue must be in Klickitat County. To determine venue, the court assumes the allegations in the complaint are true. Greenius v. Am. Sur. Co. of N.Y., 92 Wash. 401, 403, 159 P. 384 (1916) (look at claim of trespass in complaint to determine venue); Roy, 48 Wash.App. at 370, 738 P.2d 1090 (look at claims of negligence, failure to perform duties under the domestic violence act, denial of equal protection, denial of federal civil rights, and assault in the complaint to determine venue). The applicability of RCW 4.12.020(2) and venue for this action turn on the statutory interpretation of the phrase “an act done ... in virtue of his or her office.”

B. An act in virtue of his or her public office is an act exercising or failing to exercise the authority of the office

¶ 11 We must interpret the meaning of “in virtue of” in RCW 4.12.020(2). We review de novo questions of statutory meaning to discern and implement the legislature's intent. Manary v. Anderson, 176 Wash.2d 342, 350–51, 292 P.3d 96 (2013); State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). We begin by looking at the “ ‘statute's plain language and ordinary meaning.’ ” J.P., 149 Wash.2d at 450, 69 P.3d 318 (quoting Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wash.2d 9, 19, 978 P.2d 481 (1999)). Where the language of a statute is unambiguous, we “must give effect to that plain meaning as an expression of legislative intent.” Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002).

¶ 12 “If the legislature uses a term well known to the common law, it is presumed that the legislature intended it to mean what it was understood to mean at common law.” N.Y. Life Ins. Co. v. Jones, 86 Wash.2d 44, 47, 541 P.2d 989 (1975). RCW 4.12.020(2) has remained essentially unchanged since territorial days. SeeLaws Of 1854, § 14, at 133.

¶ 13 The common law defines acts done virtute officii (in virtue of a public office) as acts a public official is authorized to perform as part of his or her position, even if improperly or wrongfully performed. See, e.g., Greenius, 92 Wash. at 403–04, 159 P. 384 (“That is to say, if his office gives him authority to act, he is acting in virtue of his office, although, in the performance of a specific duty, he improperly exercises his authority.”); Feller v. Gates, 40 Or. 543, 546, 67 P. 416 (1902) (“ ‘Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him.’ ” (quoting People ex rel. Kellogg v. Schuyler, 4 N.Y. 173, 187 (1850) (Pratt, J. dissenting))); Gerber v. Ackley, 37 Wis. 43, 44 (1875) (“It is an official act, a failure to perform an official duty, or performing it in an improper manner.”). This...