Zink v. City of Mesa, 34599-8-III

• Court: Court of Appeals of Washington
• Writing for the Court: Siddoway, J.
• Citation: 419 P.3d 847
• Decision Date: 14 June 2018
• Docket Number: No. 34599-8-III,34599-8-III
• Parties: Jeff ZINK & Donna Zink, husband and wife, Appellants, v. CITY OF MESA, a Washington municipal corporation, Respondent.

419 P.3d 847

Jeff ZINK & Donna Zink, husband and wife, Appellants,
v.
CITY OF MESA, a Washington municipal corporation, Respondent.

No. 34599-8-III

Court of Appeals of Washington, Division 3.

FILED JUNE 14, 2018
AS AMENDED JUNE 19, 2018

Donna Zink (Appearing Pro Se), P.O. Box 263, Mesa, WA, 99343, for Appellants.

Leland Barrett Kerr, Kerr Law Group, 7025 W. Grandridge Blvd. Ste. A., Kennewick, WA, 99336-7826, Ramsey E. Ramerman, City of Everett, 2930 Wetmore Ave., Everett, WA, 98201-4067, for Respondent.

OPINION PUBLISHED IN PART

Siddoway, J.

¶ 1 In this, the third appeal of Donna and Jeff Zink's 2003 Public Records Act (PRA)¹ lawsuit against the city of Mesa, we address whether a trial court may consider the small size of a jurisdiction and the disproportionate burden on its taxpayers of a penalty whose amount would be appropriate if imposed on a larger jurisdiction. Rejecting both parties' appeals, we hold that the trial court did not err or abuse its discretion in arriving at a preliminary penalty based on culpability and then reducing the penalty to an amount ($350 per taxpayer) deemed necessary and sufficient to deter future misconduct.

419 P.3d 850

¶ 2 We also address the application of legislation enacted in 2011 that eliminated a $5 floor on per-day penalties under the PRA and hold that as remedial legislation, it is retroactive. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 In August 2002, the city of Mesa took the position that a building permit granted to Donna and Jeff Zink for home repairs in April 2000 had expired for suspension or abandonment. Zink v. City of Mesa , 137 Wash. App. 271, 273–74, 152 P.3d 1044 (2007) ( Zink I ). After the city's board of appeals affirmed the city's decision, the Zinks filed a petition under LUPA² in which they prevailed following city concessions. Id. at 274, 152 P.3d 1044. In Zink I, this court rejected the parties' cross appeals of the trial court's award of attorney fees.

¶ 4 In the same month that the city deemed their building permit to have expired, the Zinks began filing public record requests for documents held by the city. Zink v. City of Mesa , 140 Wash. App. 328, 333, 166 P.3d 738 (2007) ( Zink II ). From August 2002 to January 31, 2005, the requests, by the city's count, totaled 172. Id. Many, but not all, related to the city's decision to terminate the Zinks' building permit; others related to the Zinks' "self-described 'watchdog type' role in the City." Id. In April 2003, the Zinks filed an action against the city alleging violations of the Public Disclosure Act, former chapter 42.17 RCW.³ Id. at 334, 166 P.3d 738.

¶ 5 At the first show cause hearing conducted in the matter, the trial court made no findings on specific alleged violations, finding instead in general terms that the city had " 'more than substantially complied' " with the requests, that it was a " 'practical impossibility' " for the city to strictly comply given the number of requests and its limited manpower, and that the Zinks' requests " 'amounted to unlawful harassment.' " Id. at 335, 166 P.3d 738.

¶ 6 In Zink II, this court reversed the trial court and remanded with directions to enter findings on whether the city strictly complied with the PRA in the instances identified by the Zinks. Where violations had occurred, this court directed the trial court to award penalties, costs, and attorney fees. Id. at 349, 166 P.3d 738.

¶ 7 After a hearing following remand, the trial court ordered the city to pay the Zinks a total judgment of about $245,940, consisting of $167,930 in penalties, $5,700 in costs, and $72,309 in attorney fees. Zink v. City of Mesa , 162 Wash. App. 688, 701, 256 P.3d 384 (2011) ( Zink III ).

¶ 8 The Zinks again appealed to this court and the city again cross appealed. Id. Before the matter was set for argument, however, the Washington Supreme Court accepted review of Division One's decision in Yousoufian v. Office of Ron Sims , 137 Wash. App. 69, 151 P.3d 243 (2007) ( Yousoufian II⁴ ) on which the trial court in the Zinks' case had relied in arriving at its per-day penalty awards. The city's request for a stay of the appeal pending the issuance of the Supreme Court's decision was granted by this court and was lifted in May 2010 after the Supreme Court issued Yousoufian v. Office of Ron Sims , 168 Wash.2d 444, 229 P.3d 735 (2010) ( Yousoufian III ). Zink III, 162 Wash. App. at 702, 256 P.3d 384.

¶ 9 In Yousoufian III, the Supreme Court recognized that trial courts would be well served by guidance on how the high court believed they should exercise their

419 P.3d 851

broad discretion to impose PRA penalties, given the dearth of reported cases. Yousoufian III, 168 Wash.2d at 463, 229 P.3d 735. It announced 16 nonexclusive mitigating and aggravating factors trial courts should use as a guide in determining penalty amounts. Id. at 467–68, 229 P.3d 735.⁵

¶ 10 In the decision in this matter issued after the stay was lifted, dozens of challenges to the trial court's calculations of the penalty days for the city's 33 violations were resolved. Zink III, at 706–22, 730, 256 P.3d 384. Recognizing that the trial court had used a now-rejected method for calculating the amount of the per-day penalties, however, this court vacated the penalties and remanded with directions to determine penalty amounts in accordance with the guidance provided by Yousoufian III. Id. at 705–06, 730, 256 P.3d 384.

¶ 11 Four-and-a-half years later, in December 2015, the city filed a motion for partial summary judgment. Among the relief it requested was a ruling that Substitute House Bill 1899 (SHB 1899), enacted in May 2011, applied retroactively to the penalty phase of the PRA proceeding. The 2011 legislation removed what had formerly been a $5 floor on per-day penalties. LAWS OF 2011, ch. 273, § 1 (effective July 22, 2011) amending RCW 42.56.550(4). A new trial court to whom the matter was assigned following remand ruled that SHB 1899, being remedial, applied retroactively.

¶ 12 The Zinks then filed a motion for assessment of penalties, attorney fees, and costs against the city, supported by extensive documentation. The parties agreed that since this court had resolved the number of penalty days in Zink III, all that remained was for the trial court to set penalty amounts.

¶ 13 The trial court held a three-day hearing in which it used individual worksheets to assess the Yousoufian factors for each violation, indicating, with respect to each factor, whether it was "strongly present," "moderately present," "not present," or " NA [not applicable]." Clerk's Papers (CP) at 2437–69 (some capitalization omitted).

¶ 14 A few weeks thereafter, the trial court convened a hearing to deliver an oral ruling. It provided the parties with copies of its 33 penalty worksheets. The preliminary penalties identified as appropriate ranged from $1 per day on the low end to $100 per day on the high end. Some of the penalties were adjusted for four periods falling between the start dates established in Zink III and November 7, 2008, the date that findings, conclusions and an order for the second show cause hearing were entered.⁶

419 P.3d 852

¶ 15 After identifying a calculation error, it was determined that the total penalty based on the 33 worksheet amounts and the four calculation periods was $352,955. The trial court told the parties it was "a little unsettled" by the $352,955 figure and would reserve a final ruling until the presentment of proposed findings and conclusions. Report of Proceedings (RP) (May 10, 2016) at 55. It rejected a party's reference to the court as having "aimed" for a different range, explaining, "I have not aimed at any number, any gross number. I anticipated a methodology where I would just apply the factors as objectively as I could and let the chips fall where they may." Id. at 54–55. The court added, "I also told you that my intentions were to then look at that number to see if I was uncomfortable with it." Id. at 55. The court told the parties it was going to give thought to the legal question of whether it had authority to "go back and do a wholesale adjustment to the total. And I don't know the answer to that question." Id. at 56–57. It invited the parties to brief the issue in connection with their presentation of proposed findings of fact and conclusions of law. Id.

¶ 16 The city's submissions thereafter included a declaration from its clerk/treasurer identifying the amounts and restrictions on its 2015 and 2016 tax revenues, and its counsel's illustration of the impact of the trial court's preliminary penalty figure, given the city's small size and limited resources. Comparing Mesa with another city in Franklin County, the city explained:

If Pasco had treated Ms. Zink the way Mesa treated Ms. Zink, the Court's preliminary penalty award of $352,955 might be warranted. But a penalty of that size would "only" amount to $5 per resident for Pasco, whereas that same penalty will cost each resident of Mesa $718. If Pasco was penalized at $718–per–resident, the total penalty would top $49 million. The City of Mesa suggests that no one would support giving away $49 million of tax payer dollars based on the statutory violations of a handful of government employees.

CP at 2899–2900...