Ohnemus v. State
| Decision Date | 19 July 2016 |
| Docket Number | No. 46944–8–II,46944–8–II |
| Citation | 379 P.3d 142,195 Wash.App. 135 |
| Parties | Tash Ohnemus, Respondent/Cross–Appellant, v. State of Washington, Appellant/Cross–Respondent. |
| Court | Washington Court of Appeals |
Elizabeth A. Baker, Allyson Zipp, Washington Attorney General's Office P.O. Box 40126, 7141 Cleanwater Ln. SW, Olympia, WA, 98504–0126, for Appellant/Cross–Respondent.
Rebecca Jane Roe, Kathryn Goater, Schroeter Goldmark Bender, 810 3rd Ave., Ste. 500, Seattle, WA, 98104–1657, for Respondent/Cross–Appellant.
PUBLISHED IN PART OPINION
Lee, J.¶ 1 Tasha Ohnemus filed suit against the State alleging, among other things, that the State was liable for Child Protective Services's (CPS) negligent investigations into allegations that her stepfather physically and sexually abused her and for her sexual exploitation by the State under RCW 9.68A.100. The superior court granted the State's summary judgment motion for dismissal of the negligence claims, but denied the State's summary judgment dismissal of the chapter 9.68A RCW claims.
¶ 2 The State challenges the denial of its summary judgment motion to dismiss Ohnemus's claim under RCW 9.68A.100,1 arguing that the State cannot violate the statute and, even if it could, that no facts exist to support such a claim. Ohnemus challenges the dismissal of her negligence actions, arguing that an issue of material fact exists as to whether the discovery rule acted to toll the RCW 4.16.080(2) statute of limitations and that she is alleging “more serious” injuries such that she should still be able to bring a claim under RCW 4.16.340.
¶ 3 In the published portion of this opinion, we address the superior court's denial of summary judgment on Ohnemus's claims under chapter 9.68A RCW. We hold as a matter of law, under the facts of this case, that the State cannot violate RCW 9.68A.100, and therefore, the State is not liable to Ohnemus for costs and fees under RCW 9.68A.130. In the unpublished portion of this opinion, we affirm the superior court's summary judgment dismissal of Ohnemus's negligence claims against the State. Therefore, we reverse the superior court's denial of summary judgment dismissal on Ohnemus's chapter 9.68A RCW claims and affirm the superior court's grant of summary judgment dismissal to the State on Ohnemus's negligence claims.
FACTS
¶ 4 In August 2012, Ohnemus filed suit against the State, alleging that the State, through CPS, was negligent in its investigation of allegations that Ohnemus's stepfather, Steven Quiles, sexually abused her and for failing to remove her from the abuse after its 1996 and 1997 investigations. One of Ohnemus's causes of action was based on her claim that the State violated RCW 9.68A.100.2
¶ 5 In August 2014, the State filed a motion for summary judgment and sought dismissal of Ohnemus's claims. The superior court granted the State's motion to dismiss Ohnemus's negligence claims, but denied the State's motion to dismiss Ohnemus's RCW 9.68A.100 claim.
¶ 6 On October 24, and on a joint motion by the parties, the superior court entered a partial final judgment dismissing Ohnemus's negligence claims with prejudice for purposes of CR 54(b),3 and certified the case for appellate review under RAP 2.3(b)(4).4 On review, the State challenges the superior court's denial of its motion for summary judgment to dismiss Ohnemus's cause of action under RCW 9.68A.100.
ANALYSIS
¶ 7 We review summary judgment orders de novo, performing the same inquiry as the trial court. Green v. A.P.C. , 136 Wash.2d 87, 94, 960 P.2d 912 (1998). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c) ; Green , 136 Wash.2d at 94, 960 P.2d 912. We draw all reasonable inferences from the facts in the light most favorable to the nonmoving party. Hisle v. Todd Pac. Shipyards Corp. , 151 Wash.2d 853, 860, 93 P.3d 108 (2004). We may affirm the trial court's order on any basis that the record supports. LaMon v. Butler , 112 Wash.2d 193, 200–01, 770 P.2d 1027, cert. denied , 493 U.S. 814, 110 S.Ct. 61, 107 L.Ed.2d 29 (1989).
¶ 8 The State challenges the trial court's denial of the State's summary judgment motion to dismiss Ohnemus's claims under chapter 9.68A RCW, the Sexual Exploitation of Children Act (SECA). Specifically, the State argues that dismissal is proper because the State is incapable of violating RCW 9.68A.100. We agree.
¶ 9 The State argues that it cannot violate RCW 9.68A.100. To date, no court has considered this issue. We agree that as a matter of law, under the facts of this case, the State cannot violate RCW 9.68A.100.
¶ 10 Consideration of this issue requires review of RCW 9.68A.100 to determine the legislative intent. We review issues of statutory interpretation de novo. Erakovic v. Dep't of Labor & Indus. , 132 Wash.App. 762, 768, 134 P.3d 234 (2006). First, we attempt to determine legislative intent by examining the statute's plain language. Id. Only if the plain language is ambiguous do we consider other sources of statutory interpretation, such as legislative history. Id. In doing so, we avoid interpretations that create an absurd result. Id.
¶ 11 RCW 9.68A.100 is titled, “Commercial sexual abuse of a minor—Penalties—Consent of minor does not constitute defense ,” and states:
¶ 12 In order to violate this statute, the State would need to have either “engaged in sexual conduct” with a minor, or negotiated for or solicited to “engage in sexual conduct with a minor.” RCW 9.68A.100. Thus, to violate the statute, the State would have to be able to “engage in sexual conduct.” RCW 9.68A.100.
¶ 13 The statute defines “sexual conduct” as “sexual intercourse or sexual contact, both as defined in chapter 9A.44 RCW.” RCW 9.68A.100(5). RCW 9A.44.010 states that “sexual intercourse”:
RCW 9A.44.010(2) states that “sexual contact” means “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.”
¶ 14 Based on the plain language of the statute, the State cannot engage in “sexual intercourse” or “sexual contact” because the State is incapable of “penetration,” the State does not have “sex organs,” nor anything that could “contact” another's “sex organs,” nor could anyone be “the same or opposite sex” as the State. RCW 9A.44.010(1)(a)-(c), (2). Being incapable of “sexual intercourse” or “sexual contact,” the State is thereby incapable of “engag[ing] in sexual conduct.” RCW 9.68A.100 ; RCW 9A.44.010(1), (2).5
¶ 15 Because “having engaged in,” or the intent to “engage in,” “sexual conduct with a minor,” is a requisite to being found guilty under RCW 9.68A.100, and the State is incapable of such conduct, we hold that, under the facts of this case, the State cannot violate RCW 9.68A.100. Therefore, the State is entitled to dismissal of Ohnemus's causes of action brought under RCW 9.68A.100 as a matter of law.6
¶ 16 The State argues that Ohnemus is not entitled to the costs and fees under RCW 9.68A.130 because her cause of action brought under RCW 9.68A.100 fails as a matter of law. We agree.
¶ 17 RCW 9.68A.130 states, “A minor prevailing in a civil action arising from violation of this chapter is entitled to recover the costs of the suit, including an award of reasonable attorneys' fees.” Because the only violation of the chapter that Ohnemus alleges is a violation of RCW 9.68A.100 and we hold as a matter of law that the State cannot violate RCW 9.68A.100, Ohnemus is not entitled to costs and fees under RCW 9.68A.130.
¶ 18 Under the facts of this case, the State cannot violate RCW 9.68A.100 as a matter of law. Therefore, we reverse the superior court's denial of summary judgment dismissal on Ohnemus's chapter 9.68A RCW claims.
¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
¶ 20 In the following unpublished portion of this opinion, we address Ohnemus's cross-appeal of the trial court's...
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