King v. Riveland

• Decision Date: 15 December 1994
• Docket Number: No. 61647-7,61647-7
• Citation: 886 P.2d 160,125 Wn.2d 500
• Court: Washington Supreme Court
• Parties: Richard KING and Richard Jackson, individually and representing a class of similarly situated individuals, Respondents, v. Chase RIVELAND and Janet Barbour in their official capacities; The Department of Corrections of the State of Washington; the Indeterminate Sentence Review Board; and Ken Eikenberry, in his official capacity as Attorney General of the State of Washington, Appellants.

Page 500

125 Wn.2d 500

886 P.2d 160

Richard KING and Richard Jackson, individually and representing a class of similarly situated individuals, Respondents, v. Chase RIVELAND and Janet Barbour in their official capacities; The Department of Corrections of the State of Washington; the Indeterminate Sentence Review Board; and Ken Eikenberry, in his official capacity as Attorney General of the State of Washington, Appellants.

No. 61647-7.

Supreme Court of Washington,

En Banc.

Dec. 15, 1994.

Christine O. Gregoire, Atty. Gen., Thomas J. Young, Asst., Olympia, for appellants.

Preston, Gates & Ellis, Paul J. Lawrence, Marc C. Levy, Seattle, for respondents.

MADSEN, Justice.

At issue in this case is the validity of the trial court's order upholding a confidentiality agreement and permanently enjoining the release of certain information obtained from inmates participating in the Sexual Offender Treatment Program at the Twin Rivers Correction Center in Monroe, Washington.

Facts

In 1988, the Department of Corrections (DOC) instituted the Sexual Offender Treatment Program (SOTP) at the Twin Rivers Correction Center. According to its director, the purpose of the program is to provide therapy to inmates convicted of sex crimes in order to reduce their risk of reoffense upon release into the community. SOTP staff maintain a file on each participant in the program. These files contain initial interview notes, test results, a summary of the inmate's answers to the tests, progress evaluations, psychological evaluations, evaluations conducted by DOC staff, staff notes on therapy sessions and summaries of the inmate's participation in group sessions, a treatment summary, a relapse prevention plan, and other materials. Some of these materials contain reports on what the inmate said during the course of treatment.

After the first 6 months that the SOTP was in operation, all inmates who entered the program were asked to sign a confidentiality agreement. If the inmate declined, and the reason for this refusal was that he could not abide by the conditions of the agreement, he was not accepted into the program. If he declined merely because he did not want to sign the agreement, he was accepted into the program and treated as though he had signed the agreement. The agreement, hereafter referred to as the Confidentiality Statement, provided as follows:

I, ______, understand that what I say or write as part of my treatment will be treated with confidentiality. Confidentiality means that the information I give to treatment staff will not be discussed or given to anyone besides other treatment staff who need to be informed to assist in my treatment. However, there are some specific types of information that will not remain confidential. These are:

1) Information that I may hurt myself.

2) Information that I may hurt others.

3) Information about threats to the security of the Institution.

4) Specific information about child abuse occurring in the last seven years.

5) Information about the abuse of a handicapped individual occurring during the last seven years.

and,

6) Specific information pertaining to unsolved crimes.

My signature below means that I understand all of the material above and any questions I had about the above material have been answered by a Sex Offender Treatment Program staff member(s).

Clerk's Papers, at 56.

On October 17, 1990, pursuant to the Community Protection Act of 1990, the DOC issued a revised confidentiality agreement to the inmates still in the SOTP. The new agreement provided that the rules of confidentiality were not applicable if a prosecuting attorney or the Attorney General were considering whether to have an inmate committed as a sexually violent predator. Thus, when requested, "a full copy of the Sex Offender Treatment Program file will be provided to the DOC End of Sentence Review Committee and to the designated prosecuting attorney or attorney general for those individuals who meet the statutory definition of a 'sexual violent predator' and who are approaching the end of their sentence". Clerk's Papers, at 60. DOC interpreted this policy as retroactive and applied it to all participants in the SOTP back to the inception of the program.

Former SOTP participants Richard King and Richard Jackson brought this action on behalf of the class of all persons who participated in the SOTP prior to October 17, 1990, to challenge the DOC's revocation of its earlier Confidentiality Statement. They sought both declaratory and injunctive relief prohibiting the DOC from releasing any information from an SOTP file except in strict accordance with the terms of the Confidentiality Statement.

King and Jackson (hereafter referred to as the Plaintiffs) then filed a motion requesting the court to certify the case as a class action under CR 23(b)(2). The trial court granted the motion, and the Court of Appeals denied discretionary review of its decision. The Plaintiffs subsequently moved for summary judgment, seeking a holding that the DOC's revocation of its promise of confidentiality constituted a breach of contract and violated several constitutional rights of the class. The Plaintiffs also sought to enjoin the DOC from disclosing any information that it had promised would remain confidential. The trial court granted the motion on the ground that the Confidentiality Statement was an enforceable contract between the DOC and the class members. The court then issued a Judgment and Permanent Injunction prohibiting the DOC from releasing information from the Plaintiffs' SOTP files except in accordance with the terms of the Confidentiality Statement. The DOC appealed and the Court of Appeals certified the appeal to this court. Four issues are presented, all of which apply only to inmates who participated in the SOTP prior to October 17, 1990, who did not sign the DOC's new confidentiality policy.

I

We consider initially whether the Confidentiality Statement is an enforceable agreement. The Plaintiffs contend here, as they did before the trial court, that the Confidentiality Statement was a contract which has been or will be breached by the release of the entire SOTP file to any person not involved in the treatment of the inmate.

Every contract must be supported by a consideration to be enforceable. Dybdahl v. Continental Lumber Co., 133 Wash. 81, 85, 233 P. 10 (1925). Consideration is any act, forbearance, creation, modification or destruction of a legal relationship, or return promise given in exchange. Huberdeau v. Desmarais, 79 Wash.2d 432, 439, 486 P.2d 1074 (1971); Guenther v. Fariss, 66 Wash.App. 691, 696, 833 P.2d 417 (1992), review denied, 120 Wash.2d 1028, 847 P.2d 480 (1993). Before an act or promise can constitute consideration, it must be bargained for and given in exchange for the promise. Ward v. Richards & Rossano, Inc., P.S., 51 Wash.App. 423, 432, 754 P.2d 120, review denied, 111 Wash.2d 1019 (1988); Williams Fruit Co. v. Hanover Ins. Co., 3 Wash.App. 276, 281, 474 P.2d 577, review denied, 78 Wash.2d 995 (1970).

We do not find consideration present in this case. The Confidentiality Statement was not an agreement characterized by mutually agreed-upon conditions entered into voluntarily by both parties. See Ellsworth A. Fersch, Jr., Psychology and Psychiatry in Courts and Corrections 46 (1980) (discussing agreements made by authority figures that are contracts only in name). Here, the plaintiffs agreed to conditions that they could refuse only to their disadvantage--that is, no participation in the SOTP. While the Confidentiality Statement promised confidentiality of statements and writings made during treatment, it also promised the disclosure thereof under certain circumstances. Would-be participants bargained for none of those conditions and promised nothing in return. Thus, the Confidentiality Statement was presented as a "take or leave it" proposition. See Fersch, at 46. Without consideration present, there is no valid contract.

Plaintiffs argue in the alternative that the Confidentiality Statement is enforceable pursuant to the doctrine of promissory estoppel. Promissory estoppel renders a promise made without consideration enforceable. Central Heat, Inc. v. Daily Olympian, Inc., 74 Wash.2d 126, 132, 443 P.2d 544, 44 A.L.R.3d 750 (1968); Hill v. Corbett, 33 Wash.2d 219, 222, 204 P.2d 845 (1949). There are five prerequisites for a recovery in promissory estoppel: (1) A promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise. Corbit v. J.I. Case Co., 70 Wash.2d 522, 539, 424 P.2d 290 (1967) (citing Restatement of Contracts § 90 (1932)).

We turn first to the element of promissory estoppel requiring a promise, and the rule that this element is not satisfied if the promise is made by an unauthorized agent. Corbit, 70 Wash.2d at 539, 424 P.2d 290. The DOC argues here that Janet Barbour, Superintendent of the Twin Rivers Correction Center, never gave SOTP Director Barbara Schwartz the authority to enact the Confidentiality Statement. In an affidavit, Barbour states that the Confidentiality Statement was drafted and implemented by members of the SOTP staff. "I was aware that the SOTP staff treated the SOTP files with some level of confidentiality but I cannot recall ever reviewing the original Confidentiality Statement. The Confidentiality Statement was never officially adopted by me." Clerk's Papers, at 370. Because of this lack of express authorization, the DOC contends that the agreement is unenforceable. The plaintiffs respond that while express authorization may have been absent, Schwartz had either actual or apparent authority to enact the Confidentiality Statement.

An agent's authority to bind his principal may be of two types: actual or apparent....