Loeffelholz v. CITIZENS FOR LEADERS

• Decision Date: 13 January 2004
• Docket Number: No. 27256-3-II.,27256-3-II.
• Citation: 82 P.3d 1199,119 Wash.App. 665
• Court: Washington Court of Appeals
• Parties: James LOEFFELHOLZ, an individual; and Pierce County, a government entity, Appellants/Cross Respondents, v. CITIZENS FOR LEADERS WITH ETHICS AND ACCOUNTABILITY NOW (C.L.E.A.N.), a Washington non-profit corporation; Tom Richeson and Susan Coffey, a marital community; Sherry Bockwinkel, a single person, Respondents/Cross Appellants.

82 P.3d 1199

119 Wash.App. 665

James LOEFFELHOLZ, an individual; and Pierce County, a government entity, Appellants/Cross Respondents, v. CITIZENS FOR LEADERS WITH ETHICS AND ACCOUNTABILITY NOW (C.L.E.A.N.), a Washington non-profit corporation; Tom Richeson and Susan Coffey, a marital community; Sherry Bockwinkel, a single person, Respondents/Cross Appellants.

No. 27256-3-II.

Court of Appeals of Washington, Division 2.

January 13, 2004.

As Amended on Denial of Reconsideration March 2, 2004.

Thomas Joseph West, Krilich, Laporte, West & Lockner PS, Tacoma, WA, for Appellants.

Hugh Joseph McGavick, The Law Office of Hugh J. McGavick, Shawn Timothy Newman, Jeffrey Todd Even, Ofc of Atty Gen., Olympia, WA, on behalf of Washington Secretary of State, Amicus Curiae.

Traci A. Sammeth, Seattle, WA, on behalf of American Civil Liberties Union of Washington, Amicus Curiae.

MORGAN, P.J.

This case includes a counterclaim for violation of the Open Public Meetings Act (OPMA), as well as various other claims and counterclaims. It presents a plethora of issues. We affirm in part and reverse in part.

The events at issue occurred in the fall of 1996. They concern how the Pierce County Auditor was "remaking" absentee ballots. Preliminarily then, we must understand the "remaking" process.

Every county has a canvassing board composed of the county auditor or a designated deputy auditor, the county prosecutor or a designated deputy prosecutor, and the chair or a designated member of the county legislative body.¹ After each election, the auditor convenes the board "to process the absentee ballots and canvass the votes cast."² The meetings of the board are subject to Chapter 42.30 RCW, Washington's OPMA.³

When an absentee ballot is issued, it is accompanied by (1) "a security envelope in which to seal the ballot after voting," (2) "a larger return envelope," and (3) written instructions.⁴ Printed on the outside of the larger return envelope is a declaration that the voter is qualified to vote.⁵ After reading the instructions, the voter marks the ballot and seals it inside the security envelope. The voter then seals the security envelope inside the larger envelope, signs the declaration on the outside of the larger envelope, and returns the larger envelope to the auditor.

In 1996, absentee ballots were processed under former RCW 29.36.060.⁶ That statute provided:

The opening and subsequent processing of return envelopes for any primary or election may begin on or after the tenth day prior to such primary or election. The opening of the security envelopes and tabulation of absentee ballots shall not commence until after 8:00 o'clock p.m. on the day of the primary or election.

After opening the return envelopes, the county canvassing board shall place all of the ballot envelopes in containers that can be secured with numbered seals. These sealed containers shall be stored in a secure location until after 8:00 o'clock p.m. of the day of the primary or election. Absentee ballots that are to be tabulated on an electronic vote tallying system may be taken from the inner envelopes and all the normal procedural steps may be performed to prepare these ballots for tabulation before sealing the containers.

The canvassing board shall examine the postmark, statement, and signature on each return envelope containing the security envelope and absentee ballot. They shall verify that the voter's signature is the same as that in the registration files for that voter.

Former RCW 29.36.060 had at least three effects. First, it required the canvassing board to compare the signature on the exterior of each return envelope with the signature in the voter's records, starting as early as ten days before the election. Second, it required the board to store each unopened security (inner) envelope in a secure container until after the polls closed — except when the ballot was to be read and counted by an electronic voting machine, in which case the ballot could "be taken from the inner envelope[] and all the normal procedural steps ... performed to prepare [it] for tabulation before sealing the container[]." Third, it required that absentee ballots not be tabulated until after the polls closed.

The second effect's exception insured that each absentee ballot would be machine-readable once the polls closed on election night. If the ballot was properly marked, nothing needed to be done. But if the ballot was improperly marked — e.g., the voter had used red ink or circled a candidate's name — it had to be "remade" so it would be machine-readable.

In 1996, Pierce County generally used temporary election workers — often retirees — to "remake" absentee ballots. These workers would identify those ballots that were not machine-readable. Functioning in teams of two, they would then transfer the votes on those ballots to new ballots that were machine-readable⁷ — but only if the voter's intent was clear. If the voter's intent was not clear, they would refer the ballot to the canvassing board.

Before October 31, 1996, the Pierce County Auditor "remade" ballots in a series of rooms known locally as "Ballots R Us." Located in the Pierce County Annex, these rooms had hallway observation windows through which any member of the public could view the "remaking" of ballots without entering, signing in, or obtaining a visitor pass.

By October 31, 1996, the Pierce County Auditor needed more space for "remaking" due to a huge increase in absentee ballots. To accommodate this need, she directed that "remaking" occur not just at "Ballots R Us," but also at the county's election warehouse. That warehouse was a half-mile from the Annex and did not have observation windows.

In the fall of 1996, Citizens for Leaders with Ethics and Accountability Now (CLEAN) was a nonpartisan organization. Its stated goal was "to educate the citizens of Washington state about ethics and accountability of elected officials in order to return government to the people."⁸ Sherry Bockwinkel was its vice-president, secretary, and one of its directors. Susan Coffey was one of its members.

On the morning of October 31, 1996, Bockwinkel and Coffey went to the elections warehouse. The door was locked and bore a sign saying, "Knock Loudly." As someone exited, they entered without knocking or otherwise obtaining permission.

Once inside, Bockwinkel and Coffey spoke with an election worker who said they should not be there without visitors' badges. They were asked to wait until a supervisor arrived. Instead of complying, they walked down a hallway, entered an area where about 30 workers were "remaking" ballots, and began taking photographs.

At this point, Bockwinkel and Coffey were confronted by James Loeffelholz, a Pierce County deputy sheriff working overtime as a security guard. Loeffelholz asked them to leave, but they refused. A scuffle broke out as Loeffelholz, aided by an election worker named Billy Joe Arends, ejected them from the warehouse. When the scuffle ended, Bockwinkel and Coffey left.

The next day, Bockwinkel and Coffey complained to Sheriff's Lieutenant Mike Reed about Loeffelholz's "[u]se of force" and "[f]ailure ... to stop [the] assault of Ms. Coffey by Mr. Arends[.]"⁹ The record does not show what else, if anything, was said.¹⁰ Reed commenced an internal affairs (IA) investigation, which was later closed with a finding of "not sustained."¹¹

On November 2, 1996, Coffey's husband, Tom Richeson, wrote an article about the incident. He invited the reader "to imagine being thrown up against a truck and choked up to the point where you can't breath[e] by a man more than twice your size and not knowing whether you're going to live through it."¹² He added:

Even more frightening, an officer of the law stood watching. When [Coffey] tried to resist, Pierce County Sheriff James Loeffelholz stepped in and ordered [Coffey] to `stop harassing' her attacker.

. . . .

Neither [Loeffelholz nor Arends] seemed to be afraid that any of the 30 or so people who were working there would contradict their official account of the incident, although it would be totally false.[¹³]

On November 4, 1996, Bockwinkel posted Richeson's article on CLEAN's website, where it was visited 175 times over the next two years. She also mailed it to 250 Pierce County Republicans and 1500 others statewide.

In December 1996 and April 1997, respectively, Bockwinkel and Coffey filed similar suits in the United States District Court for the Western District of Washington. Each named Loeffelholz as a defendant, and Coffey named Arends as an additional defendant.¹⁴ Each alleged that excessive force had been used and that her constitutional rights had been violated. Loeffelholz counterclaimed for malicious prosecution. The federal court consolidated the two suits, dismissed the constitutional-rights claims, refused jurisdiction over Loeffelholz's malicious-prosecution counterclaim, and declined to rule on issues of state election law.¹⁵ The federal court submitted the excessive force claims to a jury which, after two trials and one appeal to the Ninth Circuit, returned a verdict in favor of Loeffelholz with respect to all claims, and a verdict in favor of Coffey with respect to her claim against Arends. According to Loeffelholz and the County, Coffey's verdict was for "$2."¹⁶

In July 1998, while the federal case was still on appeal to the Ninth Circuit, Loeffelholz and Pierce County (hereafter "the plaintiffs") sued CLEAN, Coffey, Richeson, and Bockwinkel (hereafter "the defendants") in Thurston County Superior Court.¹⁷ Loeffelholz alleged that he had been defamed by the website article and by the internal affairs (IA) complaint. Both plaintiffs alleged they had been maliciously prosecuted in the federal case. In counterclaims for damages, the defendants alleged violations of 42 U.S.C. § 1983, abuse of process, and negligence. In counterclaims against the County for reasonable attorney fees under RCW 42.30.120(2), CLEAN...