Kitsap County v. Smith
| Decision Date | 08 April 2008 |
| Docket Number | No. 35878-6-II.,35878-6-II. |
| Citation | 143 Wn. App. 893,180 P.3d 834 |
| Court | Washington Court of Appeals |
| Parties | KITSAP COUNTY, a political subdivision of the State of Washington, Appellant, v. David N. SMITH, Clayton E. Longacre, Charles J. Shank, and Longacre Law Inc., a Washington corporation, Respondents. |
¶ 1 Kitsap County appeals the trial court's (1) denial of the County's request for declaratory judgment on the issue of whether David N. Smith, a former County employee, violated the "Privacy Act," chapter 9.73 RCW, by recording conversations he had with citizens and other employees while working for the County; and (2) order granting summary judgment to Smith and his former counsel, Clayton Longacre, on the County's claim for injunctive relief and damages for Smith's asserted unlawful removal and retention of county public records. Holding that the Privacy Act issue involves a matter of major public importance and that there are issues of material fact related to Smith's removal and retention of county records, we reverse the trial court and remand for further proceedings.
¶ 2 From September 1992 to April 2006, Smith was a traffic engineer and senior program manager in the Kitsap County Department of Public Works. He was an "administrator, supervisor, and manager in the Department of Public Works." Clerk's Papers (CP) at 12.
¶ 3 In December 2004, one of Smith's subordinates, Charles Shank, filed a federal civil rights action against the County. During discovery, the County learned that Smith had recorded numerous conversations with employees and citizens without the other parties' consent or knowledge. The County also learned that Smith had removed documents from his county office and that he had turned these documents over to Longacre.
¶ 4 The County objected to Smith and Longacre's possession of these documents, asserting that they were county records it was required to maintain under chapter 40.14 RCW1 and chapter 40.16 RCW,2 and that some of the documents may not be subject to public disclosure due to employee privacy or attorney-client privilege issues. Longacre claimed that the documents were Smith's personal records and not county property.3
¶ 5 Eventually, the county prosecutor assigned to this matter, Jacquelyn Aufderheide, and Longacre agreed that the County could review and copy the documents so long as the County returned them after copying. The County copied over 4,600 pages of documents and then returned the original documents to Longacre. The parties dispute whether Smith ever returned the original documents to the County.
¶ 6 On June 7, 2005, the County filed a complaint for declaratory relief, injunctive relief, and damages against Smith and Longacre. It filed an amended complaint, adding Longacre's law firm as a defendant in August, 2005.4 The County alleged that Smith "willfully and unlawfully recorded private and confidential conversations of County employees" without their knowledge or consent in violation of the Privacy Act, that he maintained records of these recorded conversations, and that he delivered these recordings to Longacre.5 CP at 14. It also alleged that Smith had "willfully and unlawfully removed public records within the meaning of RCW 40.14.010[6] and RCW [42.56.010(2)][7] from Kitsap County's custody and control"; that he removed the records for "private purposes, not for official County business"; and that he refused to return the records as requested. CP at 13-14.
¶ 7 The County requested (1) declaratory judgment under chapter 7.24 RCW on several issues; (2) an order requiring Smith and Longacre to return the public records, including all copies, "unlawfully" removed from the County and all of the recordings and copies of recordings at issue; and (3) an order restraining Smith from continuing to remove public records from the County and from continuing to make such recordings. CP at 18. The County also requested damages and attorney fees or, in the alternative, costs and disbursements under a variety of statutes. Ultimately, the County terminated Smith's employment in April 2006.
¶ 8 On May 5, 2006, the County filed a motion for declaratory judgment under chapter 7.24 RCW, requesting that the trial court enter a judgment "declaring that David Smith recorded private conversations of County employees in violation of RCW 9.73.030." CP at 22. This motion did not address other records or claims.
¶ 9 The trial court heard the motion on June 2, 2006.8 Concluding that the County failed to establish a justiciable controversy, the trial court refused to further consider the declaratory judgment motion. The trial court also denied the County's motion for reconsideration.
¶ 10 Smith and Longacre then moved for summary judgment on the records issue, asserting that they were not unlawfully holding any county records and they were entitled to CR 11 sanctions because the County brought this action purely to intimidate Smith so he would not testify in a lawsuit against the County. The County responded that there were questions of material fact about whether the records Smith and Longacre held were county records; whether Smith and Longacre had returned the original records; and whether, even if they had returned the originals, they were still unlawfully holding copies. The County supported its opposition to the summary judgment motion with a document log summarizing the 4,600-plus pages of records the County had previously examined, duplicated, and returned to Smith and Longacre. The County also provided a supporting declaration from Aufderheide.
¶ 11 On January 10, 2007, the trial court heard the summary judgment motion.9 It granted Smith and Longacre's motion and dismissed the County's suit in its entirety, holding that the County failed to identify specifically any "original" County documents held by Smith or Longacre.10 Report of Proceedings (RP) (Jan. 10, 2007) at 15.
¶ 12 The County appeals.
¶ 13 The County's action for declaratory judgment under chapter 7.24 RCW, asked the trial court to declare that Smith recorded private conversations in violation of the Privacy Act. The County argued that declaratory judgment was proper because "if the County's interpretation of chapter 9.73[RCW] is correct, the County is likely to be held liable for the actions and omissions of its employee, David Smith, for recording private conversations without the consent of all persons being recorded." CP at 30. The County also asserted that "[a] judicial determination [of] whether employees have a reasonable expectation of privacy in their place of work, and whether the recording of conversations at issue in this action violates RCW 9.73.030, will be final and conclusive." CP at 30-31.
¶ 14 The County contends that (1) the trial court erred when it found there was no justiciable controversy and, (2) even if there were no justiciable controversy, the trial court should have considered the action because the issue is one of major public importance; namely, whether a government employee's work-related conversations with co-workers and citizens are public or private conversations. The County also argues that, in addition to finding a justiciable controversy or an issue of major public importance, the trial court should have found that Smith's actions violated the Privacy Act.
¶ 15 Smith responds that the conversations he taped during meetings and contacts regarding citizen complaints did not fall under the Privacy Act because they were not private conversations, and that none of the individuals had a reasonable expectation of privacy.11 Smith does not address the justiciable controversy issue directly.
¶ 16 We review a trial court's refusal to consider a declaratory judgment action for abuse of discretion. Wash. Fed'n of State Employees v. State, 107 Wash.App. 241, 244, 26 P.3d 1003 (2001). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).
A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.
Lu v. King County, 110 Wash.App. 92, 99, 38 P.3d 1040 (2002).
¶ 17 The County asserts that the trial court erred when it failed to grant the relief it requested under the Uniform Declaratory Judgments Act, chapter 7.24 RCW. RCW 7.24.010 provides:
Authority of courts to render. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
¶ 18 "In applying the Uniform Declaratory Judgments Act, [Washington courts] have firmly maintained that, absent issues of major public importance, a justiciable controversy must exist before a court's jurisdiction may be invoked under the act." Nollette v. Christianson, 115 Wash.2d 594, 598-99, 800 P.2d 359 (1990). In this context, a justiciable controversy is:
"`(1) . . . an actual, present and existing dispute, or the mature seeds of...
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