Leishman v. Ogden Murphy Wallace, PLLC

• Decision Date: 28 January 2021
• Docket Number: No. 97734-8,97734-8
• Citation: 196 Wash.2d 898,479 P.3d 688
• Parties: Roger LEISHMAN, Respondent, v. OGDEN MURPHY WALLACE, PLLC and Patrick Pearce, Petitioners.
• Court: Washington Supreme Court

196 Wash.2d 898

479 P.3d 688

Roger LEISHMAN, Respondent,

v.OGDEN MURPHY WALLACE, PLLC and Patrick Pearce, Petitioners.

No. 97734-8

Supreme Court of Washington.

Argued June 9, 2020

Filed: January 28, 2021

Robert M. Sulkin, McNaul Ebel Nawrot & Helgren, 600 University St. Ste. 2700, Seattle, WA, 98101-3143, Claire Martirosian, Attorney at Law, 600 University St. Ste. 2700, Seattle, WA, 98101-4151, Paul J. Lawrence, Shae Blood, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Petitioners.

Roger Ashley Leishman, Attorney at Law, PO Box 2207, Bellingham, WA, 98227-2207, for Respondent.

Nancy Lynn Talner, Antoinette M. Davis, American Civil Liberties Union of Washington, PO Box 2728, Seattle, WA, 98111-2728, Julia Mizutani, Attorney at Law, PO Box 2728, Seattle, WA, 98111-2728, Michael Edward Kipling, Walter Kipling PLLC, 1546 NW 56th Street #735, Seattle, WA, 98107, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.

Noah Guzzo Purcell, Washington Attorney General's Office, 1125 Washington St. SE, PO Box 40100, Olympia, WA, 98504-0100, for Amicus Curiae on behalf of State of Washington and Counsel for Other Parties.

MONTOYA-LEWIS, J.

¶ 1 The Washington State Legislature created civil immunity for persons who communicate information to the government. Washington passed its anti-SLAPP statute,¹ RCW 4.24.510, in 1989 in order to protect individuals from retaliatory lawsuits that could deter them from making vital reports to the appropriate governmental body. RCW 4.24.500. RCW 4.24.510 provides immunity to a "person" who communicates a complaint or information to a federal, state, or local agency regarding a matter of reasonable concern to that agency. This immunity applies to civil claims based on that communication. RCW 4.24.510.²

¶ 2 Only a "person" can take advantage of the immunity RCW 4.24.510 affords. In this case we must decide whether a government contractor hired to perform an independent investigation is a "person" under the statute. We hold that they are. Although immunities are generally construed narrowly, RCW 4.24.510 ’s immunity unambiguously applies to organizations and individuals, and there is no language in the statute limiting its application when an organization or individual communicates under a contract with a government entity. When the plain meaning of the statute grants immunity to individuals and organizations regardless of the content or motive behind the communication, we cannot construe it to exclude an individual or an organization hired to speak to a government agency. Accordingly, we reverse.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 Roger Leishman, an openly gay man, began employment with the Washington Attorney General's Office (AGO) in Bellingham as chief legal advisor to Western Washington University in June 2015.³ Shortly after commencing work at the AGO, Leishman began exhibiting serious trichotillomania, anxiety, and other symptoms, which he disclosed to his employer. In November 2015, Leishman's physician diagnosed him with posttraumatic stress disorder and codependency; Leishman informed the AGO about his new diagnoses as well. In a meeting in January 2016, Leishman learned he did not receive a $3,000 raise given to other assistant attorney generals due to complaints his supervisor made about his conduct at work. Leishman contends that his supervisor based her complaints on homophobic beliefs. In February 2016, Leishman submitted a formal request for reasonable accommodation of his disability, which the AGO subsequently denied.

¶ 4 In March 2016, Leishman drafted a discrimination complaint alleging that his supervisor made homophobic statements toward him. In accordance with AGO policy, Leishman and his supervisor met to discuss his complaint. During this meeting, his supervisor denied wrongdoing in connection with her statements, accused Leishman of faking his disability, and refused to support his then-pending accommodation request. Leishman admits that during this meeting he became angry, restless, and agitated, and he raised his voice. Leishman formally submitted his discrimination complaint to the AGO. Leishman's supervisor complained to the AGO about Leishman's conduct during their meeting, and the AGO placed Leishman on home assignment, where he remained until his termination.

¶ 5 The AGO retained Ogden Murphy Wallace PLLC (OMW), to conduct an independent investigation into Leishman's discrimination complaint and his supervisor's allegation that Leishman was inappropriate during their meeting. Patrick Pearce, an OMW employee, headed the investigation. OMW did not inform Leishman that the scope of the investigation covered both his discrimination complaint and Leishman's workplace conduct; Leishman believed the investigation covered only his discrimination complaint. OMW drafted a report and concluded that "Leishman has not established support for his complaint of discrimination against him based on sexual orientation" and that "Leishman's conduct during the March 1 meeting violated expected standards of conduct for his position as reflected in his job description." Clerk's Papers at 214-15. The AGO terminated Leishman's employment effective June 1, 2016.

¶ 6 After his termination, Leishman brought a lawsuit against the AGO. The parties reached a settlement agreement, and Leishman released his claims against the State and any officers, agents, employees, agencies, or departments of the State of Washington. Leishman subsequently sued OMW and Pearce for negligence, violation of the Consumer Protection Act, ch. 19.86 RCW; negligent misrepresentation; fraud; and discrimination. In Leishman's complaint, he alleged that neither Pearce nor OMW was acting as the AGO's agent, and, therefore, his claims against OMW and Pearce are not barred by the settlement.

¶ 7 OMW filed a motion for judgment on the pleadings, under CR 12(c), arguing that OMW and Pearce had immunity under RCW 4.24.510. The trial court granted OMW's motion, and Leishman appealed. The Court of Appeals reversed, holding that "government contractors, when communicating to a government agency under the scope of their contract, are not ‘persons’ entitled to protection under RCW 4.24.510." Leishman v. Ogden Murphy Wallace PLLC , 10 Wash. App. 2d 826, 836, 451 P.3d 1101 (2019). OMW sought this court's review. We granted review and now reverse.

II. ANALYSIS

¶ 8 Growing litigation beginning in the 1970s targeted "non-governmental individuals and groups for having communicated their views to a government body or official on an issue of some public interest." George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation , 7 PACE ENVTL. L. REV. 3, 4 (1989). These lawsuits, known as SLAPPs or SLAPP suits, "send a clear message: that there is a ‘price’ for speaking out politically." Id. at 6. Many states responded to the increase in these suits by creating statutory remedies aimed at defeating SLAPPs quickly. Michael Eric Johnston, A Better SLAPP Trap: Washington State's Enhanced Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation ," 38 GONZ. L. REV. 263, 275 (2002). Known as anti-SLAPP statutes, the protections that states provide vary widely and depend on the specific statutory language that the legislature included. Id. at 276-80.

¶ 9 In 1989, Washington passed RCW 4.24.510 —Washington's anti-SLAPP statute—and provided immunity to a "person" who communicates a complaint or information to a federal, state, or local agency for claims based on the communication regarding any matter reasonably of concern to that agency. To determine whether OMW and Pearce are immune from suit, we must address the scope of Washington's anti-SLAPP law specifically.

¶ 10 The question before this court is whether government contractors, who report information to a government agency under the scope of their contract, are "persons" under RCW 4.24.510. An individual is undisputedly a "person" under the statute. LAWS OF 2002, ch. 232, §§ 1, 2. We have also applied this immunity to organizations. See Right-Price Recreation, LLC v. Connells Prairie Cmty. Council , 146 Wash.2d 370, 384, 46 P.3d 789 (2002) (holding that a community council organization is immune under the statute).⁴ However, we have also held that government agencies are not "persons" under the statute. Segaline v. Dep't of Labor & Indus. , 169 Wash.2d 467, 470, 238 P.3d 1107 (2010) (plurality opinion). The issue here is whether an organization and an individual—who would ordinarily have immunity under the statute—lose their immunity when they speak to the agency as a paid government contractor. We hold that OMW and Pearce are "persons" under RCW 4.24.510 because the plain language of the statute unambiguously encompasses individuals and organizations, regardless of whether they report information to a government agency under the scope of their contract.

¶ 11 We review a trial court's ruling on a motion to dismiss de novo. Becker v. Cmty. Health Sys., Inc. , 184 Wash.2d 252, 257, 359 P.3d 746 (2015). Factual allegations in the complaint are accepted as true, and if it appears beyond doubt that Leishman can prove no set of facts consistent with the complaint that would entitle him to relief, the motion to dismiss must be granted. Id. at 257-58, 359 P.3d 746. If OMW and Pearce are "persons" under RCW 4.24.510, then they are immune from Leishman's suit based on their communication to the AGO, and the case must be dismissed.

¶ 12 We start with the language of the statute itself to determine the meaning of "person." Statutory interpretation is a question of law we also review de novo. Jametsky v. Olsen , 179 Wash.2d 756, 761, 317 P.3d 1003 (2014) (citing Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ). The goal of statutory interpretation "is to ascertain and carry out the legislature's intent." Id. at 762, 317 P.3d 1003. Where possible, we " ‘must give effect to [the] plain...