Spokane Research Fund v. City of Spokane

• Decision Date: 11 August 2005
• Docket Number: No. 75577-9.,75577-9.
• Citation: 117 P.3d 1117,155 Wn.2d 89
• Court: Washington Supreme Court
• Parties: SPOKANE RESEARCH & DEFENSE FUND, a Washington nonprofit corporation, Plaintiff, Tim Connor; Rhubarb Sky LLC, Petitioners, v. CITY OF SPOKANE, a Washington first class charter city, Respondent.

117 P.3d 1117

155 Wn.2d 89

SPOKANE RESEARCH & DEFENSE FUND, a Washington nonprofit corporation, Plaintiff, Tim Connor; Rhubarb Sky LLC, Petitioners, v. CITY OF SPOKANE, a Washington first class charter city, Respondent.

No. 75577-9.

Supreme Court of Washington, En Banc.

Argued June 7, 2005.

Decided August 11, 2005.

COPYRIGHT MATERIAL OMITTED

John David Blair-Loy, San Diego, CA, Nancy A. Pacharzina, Tousley Brain Stephens, PLLC, Seattle, for Petitioners.

Laurel Hobbs Siddoway, David Groesbeck, Randall & Danskin PS, Spokane, for Respondent.

Shelley Marie Hall, Stokes Lawrence, Seattle, for Amicus Curiae (Allied Daily Newspapers of Washington, Inc.)

SANDERS, J.

¶ 1 This case arises under the public disclosure act (PDA), chapter 42.17 RCW. Tim Connor and Rhubarb Sky, LLC, intervenors/petitioners, seek reversal of a published Court of Appeals opinion affirming the superior court's dismissal of their claims and denial of fees, costs, and sanctions for the alleged PDA violations. We reverse and also deny the city's motion to dismiss this appeal as moot or otherwise barred.

FACTS AND PROCEDURAL HISTORY

¶ 2 In January 2000, Tim Connor, an independent reporter,¹ filed a PDA request with the city of Spokane for, inter alia, "all memos, emails, notes, and correspondence among and between" various city officials and similar documents from these officials to external entities regarding the River Park Square (RPS) project in downtown Spokane. Clerk's Papers at 43, 60-61. The city made certain documents available right away and told Conner 30 days would be needed to collect additional documents. Over the next few months, Connor met with various city officials and reviewed documents that were periodically produced. On April 11, 2000, Connor reiterated his PDA request, emphasizing that only two memos had been produced so far.

¶ 3 During the spring of 2000 the city began to compile all RPS documents into a central repository in response to the likelihood of litigation over the project. Two interns, working under the direction of city attorney Milton Rowland, sorted the documents, putting perceived work product and privileged documents in separate binders. Rowland did not review the documents to ensure they were properly withheld from the public. Filler pages were placed in the public records indicating a confidential record was being withheld. Connor reviewed the public binders in June 2000 and found 167 filler pages, none of which indicated why the documents were being withheld.

¶ 4 In March 2001, Connor spoke with city council member Cheri Rodgers, who indicated some of the withheld documents did not warrant confidential treatment. On March 27, 2001, Connor requested a complete listing of all documents still withheld and the reasons for doing so. In April, Rowland sent Connor a list of the documents, claiming attorney/client privilege as the reason for confidentiality. The list contained 152 of the 167 documents in the confidential binders, along with 55 new documents for a total of 207 documents for which the privilege was claimed.

¶ 5 On April 24, 2001, holders of the bonds used to finance the RPS project filed suit against the city and others, and city officials reviewed claimed confidential documents on June 12, 2001 to prepare for the litigation. On June 13, 2001, Connor wrote Rowland asking for release of certain documents. On June 18, 2001, Rowland responded, noting that review of the confidential binders had begun and that new documents had been added. He said the city was determining if any of the documents should be released.

¶ 6 On June 22, 2001, Connor filed suit (Connor I). A show cause hearing was scheduled for July 12, 2001, but the hearing never took place and discovery ensued. The city had completed its revision of the confidential documents list. The list was revised in September 2001. A little over 100 documents remained withheld; the rest were disclosed.

¶ 7 Meanwhile, the city had sued the developer over the RPS project. The city's special counsel, O. Yale Lewis, Jr., had prepared a report on the RPS project for the city council, which released the report to the public in October 2000. In November 2001, the developer claimed the city had waived the attorney/client privilege for all documents used to prepare that report. The trial court agreed and defined the scope of the waiver on December 21, 2001. The city worked with Lewis over the next few months to determine which documents should be disclosed in response to this order, making the documents available to the public as identified.

¶ 8 Also during this time frame, the city brought third-party claims against its bond counsel, Roy Koegen, and the law firm, Perkins Coie, in the bondholder suit. The city thus waived its claimed attorney/client privilege with Koegen to the extent necessary for his defense. The extent of the waiver was settled by orders issued in October 2002.

¶ 9 On January 7, 2002, Spokane Research & Defense Fund (SRDF) filed this lawsuit (Connor II). SRDF obtained a show cause order with a hearing scheduled for January 22, 2002. Connor intervened because his own action sought the same documents. His complaint in intervention brought all of the claims from his own suit to this one. The complaint asked for disclosure of all documents withheld as listed in the September 2001 index.

¶ 10 The city delivered to the court the 111 withheld documents on January 18, 2002 for in camera review. On March 20, 2002, the city notified the court that only 24 of those documents were still withheld, the remainder having been disclosed pursuant to the Lewis waiver. In April 2002, the court reviewed 18 documents and determined they were properly withheld as privileged.²

¶ 11 On May 20, 2002, Connor moved for summary judgment. He argued the documents were never privileged, and hence there was no privilege to waive. He asked the judge to review all of the documents withheld on the September 2001 list (111) as well as certain other documents. Connor also requested attorney fees, costs, and sanctions. The city responded that Connor was not the cause of the documents being disclosed: that it resulted from other litigation. The city also claimed the PDA issues were moot, Connor's dealings with council member Cheri Rodgers were inequitable, there was no reason for the sanctions, and the remaining documents were properly privileged. The court denied the motion as well as a motion for reconsideration and clarification.³

¶ 12 The city moved to dismiss Connor's claims as moot and for summary judgment on November 15, 2002. The court granted the motion. The court found Connor's intervention was not the cause of, nor reasonably necessary for, the disclosure, which had occurred because of the court order regarding the Lewis waiver. The court also concluded the city acted reasonably in withholding the documents until the scope of the waiver was settled. Finally, the court determined the other documents withheld were properly within the scope of the attorney/client privilege and the work product doctrine.

¶ 13 Connor appealed these two orders.⁴ The Court of Appeals affirmed because Connor did not obtain a show cause order and because the documents were disclosed as a result of other litigation. Spokane Research & Defense Fund v. City of Spokane, 121 Wash.App. 584, 586, 89 P.3d 319 (2004). The court concluded Connor was not a prevailing party under RCW 42.17.340(4) because he did not obtain a show cause order, and the order obtained by SRDF did not apply to Connor as an intervenor. Id. at 590-91, 89 P.3d 319. Further, the court opined that summary judgment is incompatible with the PDA's statutory scheme, rendering it an improper procedure to prosecute such claims. Id. at 591-92, 89 P.3d 319.

¶ 14 Connor petitioned this court for review, which we granted.

STANDARD OF REVIEW

¶ 15 "Judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo." RCW 42.17.340(3); see also Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 252, 884 P.2d 592 (1994) (PAWS II) (applying de novo review in a case that had been decided in the trial court on summary judgment).

ANALYSIS

I. The City's Motion to Dismiss and Request for Judicial Notice Is Denied

¶ 16 The city filed a motion to dismiss this action because Connor I has gone to judgment, and the window for an appeal passed without either side appealing. The city asks us to take judicial notice of that action.⁵ Appended to the request for judicial notice are the judgment in Connor I, the findings of fact, and the conclusions of law, and the trial court's memorandum opinion of April 19, 2002, which determined the 18 documents were properly withheld as privileged.

¶ 17 Judicial notice is allowed at any stage of the proceeding. ER 201(f). Judicial notice may be taken on appeal if the following standard is met:

We may take judicial notice of the record in the case presently before us or "in proceedings engrafted, ancillary, or supplementary to it." However, we cannot, while deciding one case, take judicial notice of records of other independent and separate judicial proceedings even though they are between the same parties.

In re Adoption of B.T., 150 Wash.2d 409, 415, 78 P.3d 634 (2003) (citations omitted). Further, RAP 9.11 applies in addition to the normal judicial notice standard. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 549 n. 6, 14 P.3d 133 (2000) ("Even though ER 201 states that certain facts may be judicially noticed at any stage of a proceeding, RAP 9.11 restricts appellate consideration of additional evidence on review.").⁶

¶ 18 The city claims this action is "engrafted, ancillary or supplemental" to Connor I, making it appropriate to take judicial notice of that case. The city argues the parties are the same, and the issues are the same since Connor's complaint in intervention incorporated all of his...