Jones et al v. Washington State et al, No. 2:2012cv00188 - Document 176 (E.D. Wash. 2014)
Court Description: ORDER DENYING PLAINTIFFS' MOTIONS TO EXCLUDE AND FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; denying 106 Motion to Exclude; denying 108 Motion for Summary Judgment; granting in part and denying in part 111 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)
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Jones et al v. Washington State et al Doc. 176 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. ALEXANDER N. JONES; KEN JONES; and JO ANNE JONES, CV-12-0188-EFS 8 Plaintiffs, 9 v. 10 11 12 13 GRANT COUNTY, WASHINGTON; LEROY C. ALLISON and BENAYA ALLISON, his wife; TIM SNEAD and "JANE DOE" SNEAD, his wife; DEBORAH KAY MOORE and DOUG MOORE, her husband; and DOUGLAS G. ANDERSON and KIRSTEN H. ANDERSON, his wife, ORDER DENYING PLAINTIFFS’ MOTIONS TO EXCLUDE AND FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on Plaintiffs’ Motion to 18 Exclude Richard Alldredge, ECF No. 106, Plaintiffs’ Motion for Summary 19 Judgment Re: Collateral Estoppel, ECF No. 108, and Defendants’ Motion 20 for Summary Judgment, ECF No. 111. 21 Anne Jones seek to exclude Defendants’ statistician Richard Alldredge 22 and ask the Court give preclusive effect to the Washington Supreme 23 Court decision in State v. ANJ, 225 P.3d 956 (2010). 24 Allison, Tim Snead, Deborah Kay More (the “County Commissioners”), 25 their respective spouses, and Grant County (collectively, the “County 26 Defendants”) seek summary judgment on all of Plaintiffs remaining Plaintiffs Alexander, Ken, and Jo Defendants Leroy ORDER - 1 Dockets.Justia.com 1 claims. To date, Defendants Douglas Anderson and Kirsten Anderson 2 have not joined the County Defendants’ motion or filed their own 3 dispositive motion. 4 parties and reserved ruling on the pending motions. On February 4, 2014, the Court heard from the The Court, having reviewed the pleadings, legal authority, and 5 6 the arguments of counsel, is fully informed. 7 forth below, the Court denies Plaintiffs’ Motion to Exclude, denies 8 Plaintiffs’ Motion for Summary Judgment, and grants in part and denies 9 in part County Defendants’ Motion for Summary Judgment. II. 10 11 A. For the reasons set BACKGROUND Factual History1 12 On July 2, 2004, at twelve years of age, Plaintiff Alex Jones -- 13 the son of Plaintiffs Ken and Jo Anne Jones -- was charged with First 14 Degree Child Molestation in the Juvenile Division of Grant County 15 Superior Court.2 16 independent contractor, was appointed to represent Alex. 17 had been under contract with Grant County to provide legal defense 18 services in the Juvenile Division of Grant County Superior Court since 19 December 2000. 20 of the Grant County Superior Court to represent minor defendants who 21 could not afford to hire their own attorney. Grant County public defender Douglas Anderson, an Mr. Anderson Pursuant to that contract, he was appointed by judges 22 23 24 25 26 1 In ruling on the motion for summary judgment, the Court has considered the facts and all reasonable inferences therefrom as contained in the submitted affidavits, declarations, exhibits, and depositions, in the light most favorable to the party opposing the motion. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 2 Because all three Plaintiffs share a common surname (Jones), to avoid confusion, the Court refers to Plaintiffs Ken and Jo Anne Jones as Mr. and Mrs. Jones, respectively, and to Plaintiff Alexander Jones as Alex, which is the given name he uses in the Complaint. The Court intends no disrespect. ORDER - 2 The Board of County Commissioners is the primary legislative and 1 2 executive authority for the county, with the authority and 3 responsibility to make and enforce all laws within the county. ECF 4 No. 136. 5 set forth the standards for the delivery of legal services to indigent 6 juveniles. Grant County passed two Resolutions 92-115-C and 97-29-CC to 7 Mr. Anderson represented Alex throughout the September 15, 2004 8 pretrial conference and entry of a guilty plea to the reduced charge 9 of Second Degree Child Molestation. After entering a guilty plea on 10 September 22, 2004, Alex hired a new lawyer in November 2004 and 11 within five weeks moved 12 Superior Court denied Alex’s motion to withdraw his plea, he appealed. 13 The Washington Supreme Court in State v. ANJ, 168 Wash.2d 91 (2010) 14 reversed the Superior Court decision finding that Mr. Johnson had 15 rendered deficient assistance by failing to conduct an investigation 16 before proceeding to a guilty plea, and permitted Alex to withdraw his 17 plea 18 misinformation about the impact of a juvenile sex conviction. 19 B. based upon a to withdraw his guilty finding the plea was plea. After involuntary due the to Procedural History 20 Plaintiffs filed this action in Chelan County Superior Court on 21 March 5, 2012, alleging claims against the State of Washington and 22 Governor Christine O. Gregoire (collectively, the “State Defendants”), 23 the County Defendants, and Douglas and Kirsten Anderson, ECF No. 2, at 24 7-21. The Complaint asserts the following claims for relief: 25 26 ORDER - 3 (a) 1 two claims against all Defendants for declaratory judgment, 2 pursuant to RCW 7.24.010 and 7.24.050 (First and Second 3 Claims); (b) 4 a claim against all Defendants for violating Mr. Jones's 5 rights 6 Constitution (Third Claim); (c) 7 one under claim Article each I, against section Defendants 22 of the Gregoire, Washington the County 8 Commissioners, Douglas Anderson, and Grant County, pursuant 9 to 42 U.S.C. § 1983, for violating Mr. Jones’s Sixth 10 Amendment right to effective assistance of counsel (Fourth, 11 Fifth, Sixth, and Seventh Claims, respectively); (d) 12 two additional claims against Defendant Douglas Anderson, 13 one for professional negligence (Eighth Claim), and one for 14 breach of fiduciary duty (Ninth Claim); (e) 15 one claim against Defendants Grant County and the County 16 Commissioners 17 retention (Tenth Claim); (f) 18 for negligent hiring, supervision, and one claim against the County Commissioners and Defendant 19 Douglas 20 conspiracy (Eleventh Claim); (g) 21 Anderson for “concerted action,” or civil one claim against the spouses of the County Commissioners for community liability (Twelfth Claim); and 22 (h) 23 one claim against all Defendants for injury to child, pursuant to RCW 4.24.010 (Thirteenth Claim). 24 25 Defendants removed the case to this Court on May 4, 2012. 26 // ORDER - 4 ECF No. 1. On June 26, 2012, the State Defendants moved for judgment on the 1 2 pleadings. ECF No. 17. 3 State Defendants’ motion and dismissed all claims against the State 4 Defendants. 5 Defendants also moved for judgment on the pleadings. 6 October 31, 2012, the Court denied the County Defendants’ motion as to 7 Plaintiffs’ Fifth, Seventh, and Thirteenth Claims, but granted the 8 motion as to Plaintiffs’ First, Second, and Third Claims. 9 Accordingly, Plaintiffs’ 10 dismissed to 11 Plaintiffs’ First, Second, and Third Claims remained as to Defendants 12 Douglas and Kirsten Anderson. 13 2013, Plaintiffs filed an Amended Complaint, which listed the First, 14 Second, 15 “dismissed per ECF No. 41 & 45.” 16 Complaint also withdrew Plaintiffs’ Eight, Ninth, and Tenth Claims. 17 ECF No. 85 at 13-14. 18 parties’ Notice of To-Be-Adjudicated Claims, remaining before this 19 Court is Plaintiffs’ Fifth, Sixth, Seventh, Eleventh, Twelfth, and 20 Thirteenth Claims. as and ECF Nos. 41 & 45 at 7 n.5. 23 the Third First, County Claim as On July 10, 2012, the County Second, and Defendants. ECF No. 20. Third ECF No. “[a]gainst all ECF No. 45. Claims 45. ECF No. 45 at 11 n.6. were However, On April 8, defendants” ECF No. 85 at 10. On and as The Amended Based upon the Courts’ previous Orders and the III. PLAINTIFFS’ MOTION TO EXCLUDE 21 22 On August 8, 2012, the Court granted the A. Legal Standard An expert witness may testify at trial if the expert's 24 “specialized knowledge will assist the trier of fact to understand the 25 evidence or to determine a fact in issue.” 26 witness ORDER - 5 must be “qualified as an expert Fed. R. Evid. 702. by knowledge, A skill, 1 experience, training, or education” and may testify “if (1) the 2 testimony is based upon sufficient facts or data, (2) the testimony is 3 the product of reliable principles and methods, and (3) the witness 4 has applied the principles and methods reliably to the facts of the 5 case.” 6 148–49 (1999). 7 testimony or evidence admitted is not only relevant, but reliable.” 8 Daubert v. 9 (1993). “Concerning the reliability of non-scientific testimony . . . Id.; see also Kumho Tire v. Carmichael, 526 U.S. 137, 141, The “trial judge must ensure that any and all [expert] Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 10 the Daubert factors (peer review, publication, potential error rate, 11 etc.) simply are not applicable to this kind of testimony, whose 12 reliability depends heavily on the knowledge and experience of the 13 expert, rather than the methodology or theory behind it.” 14 v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 15 2004) (citations omitted). 16 role 17 experience. 18 has 19 Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 20 expert's proposed testimony must be established by a preponderance of 21 the evidence. 22 “If the reviewing court decides the record is sufficient to determine 23 whether expert testimony is relevant and reliable, it may make such 24 findings. 25 trial 26 insufficient to constitute a submissible case[,]’ the reviewing court under the of In such cases, the Court’s gatekeeping involves See id. at 1018. burden and ORDER - 6 Daubert proving Hangarter probing the expert's knowledge and “It is the proponent of the expert who admissibility.” Lust v. Merrell Dow Admissibility of the See Daubert, 509 U.S. at 592 n. 10 (citation omitted). If it ‘determines that evidence [would be inadmissible] at that the remaining, properly admitted evidence is 1 may direct entry of judgment as a matter of law.” 2 v. AstenJohnson, Inc., 10-36142, 2014 WL 129884 (9th Cir. Jan. 15, 3 2014) (quoting Weisgram v. Marley Co., 528 U.S. 440, 446–47 (2000)) 4 (alternation in original). 5 B. Analysis Plaintiffs 6 Estate of Barabin seek to exclude any testimony or evidence from 7 Defendants’ expert statistician, Richard Alldredge. 8 offered in response to Plaintiffs’ own expert statistician Mel Ott. 9 Plaintiffs do not challenge Alldredge’s qualifications, nor do they 10 dispute that he relied upon sufficient data and used reliable methods. 11 Both experts, Mr. Ott and Mr. Alldredge used the same data source and 12 the same odds ratio analysis, Chi-Square Test, and Fisher’s Exact 13 Test. 14 grouping of data for inclusion in their odds ratio analyses and the 15 opinions each reached based upon that analysis. 16 that the selecting or grouping of data conducted by Mr. Alldredge 17 render his application in this case unreliable. The sole distinction between the two experts analysis is the Here, 18 Mr. Alldredge is at the for why different data sets were compared and its impact upon the 22 expert’s opinion goes to the weight and credibility of those opinions 23 rather than their admissibility. 24 385, 25 regression analyses offered to prove discrimination were unacceptable 26 because did not include the all different data uncontested. 21 (Overturning of are reasoning for why certain data sets should be compared. they meaning methodology 20 (1986) the statistical Truly ORDER - 7 is and 19 401 issue data Plaintiffs assert points and the The reasoning See Bazemore v. Friday, 478 U.S. lower courts measurable finding variables, that the the Court 1 stated that “[n]ormally, failure to include variables will affect the 2 analysis’ probativeness, not its admissibility.”). 3 goes to 4 reliability. 5 their respective data sets to compare and the means they place behind 6 those results will aid the jury in better understanding the issues in 7 this case. 8 approach is more credible. 9 is denied. which data sets to use, which Both 11 goes to probativeness not The explanation by both experts as to why they choose Ultimately, it is a question for the jury to decide which IV. 10 Here, the dispute parties Accordingly, Plaintiffs’ Motion to Exclude MOTIONS FOR SUMMARY JUDGMENT have filed a motion for summary judgment. 12 Plaintiffs ask that the state court’s decision in State v. ANJ, 225 13 P.3d 956 (2010) be given “collateral estoppel effect” against all 14 Defendants. 15 as to all of Plaintiffs’ remaining claims as to the County and the 16 County Commissioners. 17 A. ECF No. 108. The County Defendants seek summary judgment Legal Standard 18 Summary judgment is appropriate if the “movant shows that there 19 is no genuine dispute as to any material fact and the movant is 20 entitled to judgment as a matter of law.” 21 Once a party has moved for summary judgment, the opposing party must 22 point to specific facts establishing that there is a genuine dispute 23 for trial. 24 the nonmoving party fails to make such a showing for any of the 25 elements essential to its case for which it bears the burden of proof, 26 the trial court should grant the summary judgment motion. ORDER - 8 Fed. R. Civ. P. 56(a). Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If Id. at 322. 1 “When the moving party has carried its burden under Rule [56(a)], its 2 opponent must do more than simply show that there is some metaphysical 3 doubt as to the material facts. 4 forward with ‘specific facts showing that there is a genuine issue for 5 trial.’” 6 574, 586-87 (1986) (internal citation omitted) (emphasis in original). 7 When considering a motion for summary judgment, the Court does not 8 weigh the evidence or assess credibility; instead, “the evidence of 9 the non-movant is to be believed, and all justifiable inferences are . . . [T]he nonmoving party must come Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 10 to be drawn in his favor.” 11 242, 255 (1986). 12 B. Anderson v. Liberty Lobby, Inc., 477 U.S. Plaintiffs’ Motion for Summary Judgment Re: Collateral Estoppel Plaintiffs seek to have the Washington Supreme Court’s decision 13 14 in State v. ANJ, 15 effect” 16 Plaintiffs seek a ruling that “Doug Anderson rendered ineffective 17 assistance of counsel, and deprived Alex Jones of his rights under the 18 Sixth Amendment” by 1) “failing to adequately investigate the charges 19 against 20 relationship 21 “misinforming Alex Jones regarding the consequences of a guilty plea,” 22 and 4) “failing to ensure that Alex Jones understood the nature of the 23 charges against him,” and that the “public defense contract between 24 Grant 25 ineffective assistance of counsel . . . violations.” 26 2. against Alex County ORDER - 9 225 all P.3d and (2010) Defendants. Jones,” with 956 Alex Doug 2) ECF “failing Jones, Anderson given No. to 108. establish independent was “collateral a of cause his of estoppel Specifically, a confidential parents,” the 3) foregoing ECF No. 108 at 1 1. 2 A federal court considering whether to apply issue preclusion 3 based on a prior state court judgment must look to state preclusion 4 law. 5 See also W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 6 1525 (9th Cir. 1990) (“[A] federal court must give to a state court 7 judgment the same preclusive effect as would be given that judgment 8 under the law of the state in which the judgment was rendered.”) 9 Accordingly, the Court looks to Washington’s law of issue preclusion. 10 11 12 13 14 15 Collateral Estoppel McInnes v. California, 943 F.2d 1088, 1092-93 (9th Cir. 1991). Under Washington law, issue preclusion or collateral estoppel requires the party seeking preclusion to establish that: (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. 16 Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wn.2d 299, 307 17 (2004). Collateral estoppel may be applied to preclude only issues 18 that were litigated and finally determined in the earlier proceeding, 19 and the party against whom it is asserted must have had a full and 20 fair opportunity to litigate the issue. Id. at 306. “The proponent 21 must provide the reviewing court with a sufficient record of the prior 22 litigation to facilitate such analysis.” State v. Barnes, 932 P.2d 23 669, 678 (Wash.App. Div. 2 1997) (citing Beagles v. Seattle-First 24 Nat’l Bank, 25 Wash. App. 925, 932 (1995). “Where it is not clear 25 whether an 26 ORDER - 10 issue was actually litigated, or if the judgment is 1 ambiguous or indefinite, application of collateral estoppel is not 2 proper.” 3 403, 407 (1984). Id. (citing Mead v. Park Place Properties, 37 Wash. App. 4 2. Analysis 5 Plaintiffs seek collateral estoppel against two separate groups 6 of Defendants, the County Defendants and the Anderson Defendants. 7 Accordingly, the Court evaluates each group in turn. a. 8 County Defendants Plaintiffs 9 seek collateral estoppel claiming the issue of 10 whether the contract was a cause of the ineffective assistance of 11 counsel violations was fully litigated in the Washington State Supreme 12 Court. 13 litigated and finally decided by the Supreme Court. 14 states, “A.N.J. also argues the Grant County public defender contract 15 in 16 investigate their clients’ cases or hire experts. 17 opinion does not state the Court held that the contract between Grant 18 County and Anderson actually caused ineffective assistance. 19 P.3d at 966. 20 “[h]owever, we hold that if a public defender contract requires the 21 defender to pay investigative, expert, and conflict counsel fees out 22 of the defender’s fee, the contract may be considered as evidence of 23 ineffective assistance of counsel.” 24 Accordingly, as to the issue of the contract causing a violation, it 25 is not clear that the issue was fully and fairly litigated below or 26 that it was reached on the merits. However, place ORDER - 11 at the it time is not created clear an that this incentive issue for was directly While the opinion attorneys not to We agree,” the ANJ, 225 To the contrary, the Court limits its holding stating Id. at 967 (emphasis added). Accordingly, as the first and 1 second factors work against a finding of collateral estoppel as to the 2 County Defendants, the Court denies Plaintiffs motion as to the County 3 Defendants. b. 4 5 Anderson Defendants Anderson was not a party to the state court criminal proceeding 6 and was not a party as the case was appealed. Accordingly, in order 7 for collateral estoppel to apply, Anderson would have to be in privity 8 with a party. 9 was a witness in the underlying criminal case. Plaintiffs argue that privity is met because Anderson Plaintiffs cite to the 10 passage in World Wide Video of Washington, Inc. v. City of Spokane, 11 125 Wash. App. 289, 306 (2005), that “[o]ne who was a witness in an 12 action, fully acquainted with its character and object and interested 13 in its results, is estopped by the judgment as fully as if he had been 14 a party.” 15 subsequent sentence which states, “[i]f this interested witness could 16 have intervened but chose not to for tactical reasons, he or she 17 suffers no injustice from application of collateral estoppel.” 18 (citing Garcia v. Wilson, 820 P.2d 964, 966-67 (1991); Hackler v. 19 Hackler, 37 Wash. App. 791, 795 (1984). However, Plaintiffs fail to include in their brief the Id. 20 Here, while Anderson was a witness in the criminal proceeding, 21 testifying to assist his former client to withdraw his guilty plea, 22 there was no opportunity for Anderson to intervene in the action and 23 no evidence of some manipulation or tactical maneuvering on his part. 24 To the contrary, the Washington Supreme Court noted that: 25 26 [W]e do not mean to suggest any particular ethical violation on [Anderson’s] part. The record suggests Anderson believed he acted in the best interest of his ORDER - 12 client which is evidence by his willingness to sign a declaration detailing his inadequate performance in support of A.N.J.’s motion to withdraw his plea. 1 2 3 ANJ, 225 P.3d at 970 n.18. Accordingly, the Court finds application 4 of collateral estoppel as to the Anderson Defendants would work an 5 injustice upon Defendant Anderson. For the foregoing reasons, the Court denies Plaintiffs’ Motion 6 7 for Summary Judgment regarding collateral estoppel. 8 C. Grant County Defendants’ Motion for Summary Judgment County 9 Defendants move for summary judgment asserting that 10 Monell liability cannot be demonstrated a matter of law, that the 11 Commissioners are entitled to either absolute-legislative immunity or 12 qualified immunity, that the community liability claims have no basis 13 in law, and that the state law derivative claim under RCW 4.24.010 14 does not state a cognizable claim. 15 1. Community Liability 16 Plaintiffs’ Twelfth Claim asserts community liability against 17 the County Commissioners’ spouses. 18 basis in law. 19 claim as to the spouses of the County Commissioners. 20 n.1. 21 liability, 22 Defendants only. ECF No. 111. Defendants argue this claim has no In response, Plaintiffs withdraw this ECF No. 125 at 2 Accordingly, the Court grants Defendants’ motion as to community dismissing Plaintiffs’ Twelves Claim as to the County 23 2. 24 Defendants argue that the County cannot be liable under Section 25 1983 absent proof of a policy or custom that amounts to deliberate 26 ORDER - 13 Grant County 1 indifference to Sixth Amendment rights and a showing that the policy 2 or custom was the moving force behind the claimed violations. 3 Section 1983 imposes two essential proof requirements upon a 4 claimant: (1) that a person acting under color of state law committed 5 the conduct at issue, and (2) that the conduct deprived the claimant 6 of some right, privilege, or immunity protected by the Constitution or 7 laws of the United States. 8 (1981). 9 the Parratt v. Taylor, 451 U.S. 527, 535 A person deprives another “of a constitutional right, within meaning of section 1983, if he does an affirmative act, 10 participates in another's affirmative acts, or omits to perform an act 11 which he is legally required to do that causes the deprivation of 12 which [the plaintiff complains].” 13 (9th Cir. 1978). 14 and 15 defendant 16 constitutional deprivation. 17 (1976). 18 superior liability. 19 690-92 (1978). 20 position and the claimed constitutional violation must be shown; vague 21 and conclusory allegations are insufficient. 22 607 F.2d 858, 862 (9th Cir. 1979); Ivey v. Bd. of Regents, 673 F.2d 23 266, 268 (9th Cir. 1982). focus on The inquiry into causation must be individualized the whose Johnson v. Duffy, 588 F.2d 740, 743 duties acts or and responsibilities omissions are alleged of to each have individual caused a See Rizzo v. Goode, 423 U.S. 362, 370-71 Liability for a violation will not arise from respondeat Monell v. Dep’t of Social Servs., 436 U.S. 658, A causal link between a person holding a supervisory See Fayle v. Stapley, 24 A government entity may not be held liable under 42 U.S.C. § 25 1983, unless a policy, practice, or custom of the entity can be shown 26 to be a moving force behind a violation of constitutional rights. ORDER - 14 1 Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 2 694 (1978). 3 under 4 possessed a constitutional right of which [s]he was deprived; (2) that 5 the 6 deliberate indifference to the plaintiff's constitutional right; and, 7 (4) that the policy is the moving force behind the constitutional 8 violation.” 9 432, 10 11 In order to establish liability for governmental entities Monell, a municipality 438 plaintiff had a must policy; prove (3) “(1) that that this [the policy plaintiff] amounts to Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original). Here, Alex had a constitutional right to effective assistance of 12 counsel, 13 favorably to Plaintiff, the County had a policy of providing indigent 14 defense through the type of contract at issue. 15 parties dispute whether the policy was deliberately indifferent or the 16 moving force behind the violation. 17 and taking Deliberate the County indifference Regulations occurs “when and the the Contract most Accordingly, the need for more or 18 different action ‘is so obvious, and the inadequacy [of the current 19 procedure] so likely to result in the violation of constitutional 20 rights, that the policymakers . . . can reasonably be said to have 21 been deliberately indifferent to the need.’” 22 Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992) (quoting City of 23 Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)). 24 County Defendants maintain that the Oviatt By & Through terms of the contract 25 combined with the fact that these contract terms were not prohibited 26 by the Rules of Professional Conduct until 2008, four years after the ORDER - 15 1 representation of Alex, 2 demonstrate 3 Plaintiffs 4 Commissioners Committee recommendations, the ACLU Report, the WSBA 5 Report, the Seattle Times series, and the Best lawsuit should have 6 alerted 7 effective indigent defense. 8 finds that there is a genuine dispute of material facts as to whether 9 the deliberate maintain the County County was that it is indifference that that the its WDA impossible on the Standards, policy was for part the Plaintiffs of the Board inadequate county. of for to County providing The Court having reviewed this evidence deliberately indifferent to the plaintiff's 10 constitutional right or was the moving force behind the violation. 11 Accordingly, this is a matter best left for resolution by the jury. 12 Defendant’s motion as to the County’s liability is denied. 13 3. 14 Defendants argue the County Commissioners are entitled to either 15 absolute immunity or qualified immunity. a. 16 17 County Commissioners Defendants Absolute Immunity argue as they County were Commissioners engaged in are entitled legislative to 18 absolute 19 Legislators “are absolutely immune from liability under § 1983 for 20 their legislative acts.” 21 1219 (9th Cir. 2003). 22 whether an act is legislative, “(1) whether the act involves ad hoc 23 decision making, or the formulation of policy; (2) whether the act 24 applies to a few individuals, or the public at large; (3) whether the 25 act is formally legislative in character; and (4) whether it bears all 26 the hallmarks of traditional legislation.” ORDER - 16 immunity the acts. Kaahumanu v. County of Maui, 315 F.3d 1215, There are four factors to apply in deciding Id. at 1220. Here, the Court finds this was not a traditional legislative 1 2 act. While the policies setting forth the standards for the delivery 3 of legal services to indigent juveniles were set forth in two passed 4 resolutions, 5 contract 6 Anderson carried out the policy embodied in the County resolutions but 7 did not formulate a policy, and was in the form of a contract rather 8 than 9 administering 92-115-C with an and Anderson. ordinance, 97-29-CC, The contract resolution, contracts is the or generally matter between at issue is the Commissioners and legislation. an Additionally, executive function. See 10 Community House, Inc. v. City of Boise, 623 F.3d 945, 960 (9th Cir. 11 2010) 12 contract is generally an executive function.”). 13 County 14 therefore do not enjoy the protection of absolute immunity. (recognizing that Commissioners b. 15 “monitoring were not or engaged administering in a a municipal Accordingly, the legislative act and Qualified Immunity Defendants argue the County Commissioners, in their individual 16 17 capacity, are 18 qualified immunity protects government officials ‘from liability for 19 civil 20 established 21 person would have known.’” 22 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Staton 23 v. Sims, 134 S.Ct. 3, 5 (2013) (“existing precedent must have placed 24 the statutory or constitutional question beyond debate”). damages entitled insofar state or to as qualified their immunity. conduct constitutional does rights of “The not doctrine violate which a of clearly reasonable Pearson v. Callahan, 555 U.S. 223, 231 25 Here, in 2000 when the County Commissioners entered into the 26 contract with Anderson that is at issue, and in 2004 when Alex was ORDER - 17 1 represented by Anderson, 2 maintaining such a system of public defense would violate a person’s 3 Sixth Amendment rights. 4 material 5 indifference due to numerous reports and recommendations available to 6 the County, the question of qualified immunity requires the question 7 be beyond debate. 8 1043, 9 deliberate indifference and qualified immunity are separate). issue 1048-1050 of it was not clearly established that While, as discussed earlier, there is a whether the County acted with deliberate See also Estate of Ford v. Ramirez-Palmer, 301 F.3d (9th Cir. 2002) (recognizing the inquiry into It was 10 not until September 2008 that the Rules of Professional Conduct were 11 amended to prohibit the types of contracts entered into with Anderson. 12 Even in 2010, the Washington Supreme Court specifically refused to 13 hold that such contracts violates a constitutional right, instead only 14 finding 15 ineffective assistance of counsel.” 16 While Plaintiffs cite to the decision in Miranda v. Clark County, 319 17 F.3d 465 (9th Cir. 2003), finding the improper allocation of public 18 defense resources constitutes a deprivation of the Sixth Amendment 19 right to effective assistance of counsel, Miranda does not put the 20 County Commissioners on notice that the constitutional question at 21 issue was beyond debate. 22 to qualified immunity. 23 that “the contract may be considered as evidence of ANJ, 168 Wash. 2d. at 111-112. Accordingly, the Commissioners are entitled For the foregoing reasons, Defendants’ motion is granted as to 24 qualified 25 liability. 26 against immunity the ORDER - 18 and denied as to absolute immunity and Monell Because Plaintiffs’ Fifth Claim is therefore dismissed County Commissioners, the related Eleventh Claim for 1 concerted action and the derivative Thirteenth Claim for injury to a 2 child, cannot be maintained. V. 3 CONCLUSION 4 Based upon the forgoing findings, remaining for trial are 1) 5 Plaintiff’s Sixth, Eleventh, Twelfth, and Thirteenth Claims against 6 the Anderson Defendants, and 2) Plaintiff’s Seventh and Thirteenth 7 Claims against Grant County. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiffs’ Motion to Exclude, ECF No. 106, is DENIED. 10 2. Plaintiffs’ Motion for Summary Judgment, ECF No. 108, is DENIED. 11 3. 12 Defendants’ Motion for Summary Judgment, ECF No. 111, is 13 GRANTED IN PART (community liability; qualified immunity) 14 and DENIED IN PART (remainder). 4. 15 Plaintiffs’ Twelfth Claim is as to County Defendants only. 16 5. 17 Plaintiff’s Fifth, Eleventh, and Thirteenth Claims are dismissed as to the County Commissioners. 18 6. 19 The case caption is to be AMENDED as follows: ALEXANDER N. JONES; KEN JONES; and JO ANNE JONES, 20 Plaintiffs, 21 v. 22 23 GRANT 24 KIRSTEN H. ANDERSON, his wife, COUNTY, WASHINGTON; Defendants. 25 26 dismissed // ORDER - 19 and DOUGLAS G. ANDERSON and 1 2 3 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 27th day of May 2014. 4 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2012\0188.msj.deny.lc2.docx ORDER - 20
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