Roe 1 et al v. Anderson et al, No. 3:2014cv05810 - Document 49 (W.D. Wash. 2015)
Court Description: ORDER granting 38 Plaintiffs' Motion for Summary Judgment; this matter is DISMISSED; signed by Judge Ronald B. Leighton.(DN) Modified on 8/10/2015 (DN). (cc to Van Vleet)
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Roe 1 et al v. Anderson et al Doc. 49 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 JANE ROE 1 AND JANE ROE 2 on behalf of themselves and on behalf of other similarly situated individuals, and DREAMGIRLS of TACOMA LLC, a Washington Limited Liability Corporation, 11 12 13 No. 3:14-CV-05810 RBL ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN PART 14 Plaintiffs, 15 [Dkt. #38] v. 16 17 JULIE ANDERSON, Pierce County Auditor, PIERCE COUNTY, a county in the State of Washington, and DAVID VAN VLEET, 18 19 20 Defendants. 21 22 THIS MATTER is before the Court on Plaintiffs’ Motion for Summary Judgment [Dkt. 23 #38]. Plaintiffs are erotic dancers and managers at Dreamgirls at Fox’s, a Parkland, Washington 24 25 erotic dance studio. Erotic dancers and managers are required to be licensed under local law.1 26 1 27 28 See Pierce County Code Chapter 5.14. The licensing requirements for dancers and managers are slightly different, as are the privacy concerns they raise. But the issues are the same, and the outcome is the same. For clarity this order will refer to the plaintiffs as “dancers” unless the context requires otherwise. Order - 1 Dockets.Justia.com 1 Defendant David Van Vleet, a private citizen, filed a Public Records Act (PRA) disclosure 2 request with Defendant Pierce County Auditor Julie Anderson seeking the Dreamgirls’ 3 employees’ personal information, including true names, birthdates, and photographs. Anderson 4 informed the Plaintiffs of Van Vleet’s request and of her intention to disclose their information 5 to him unless Plaintiffs obtained an injunction. 6 Plaintiffs sued seeking to temporarily and permanently enjoin the disclosure—not just to 7 8 Van Vleet, but to any member of the general public. They argue that the PRA’s privacy 9 exception is not broad enough to prevent that disclosure—as Anderson apparently determined— 10 but that disclosure would violate their constitutional rights to privacy and free expression. The 11 Court held a hearing and granted a preliminary injunction enjoining the disclosure2. Plaintiffs 12 13 now seek a declaration that the PRA is unconstitutional as applied to them, and a permanent 14 injunction barring disclosure of their license information to all members of the general public3. 15 They claim that disclosure would lead to stalking, harassment, blackmail, and injury to 16 relationships and future employment prospects. 17 Van Vleet has not responded to the Motion. The Attorney General filed an amicus brief 18 19 [Dkt. #45], arguing that the PRA is constitutional because it does not require the disclosure of 20 information protected from disclosure by the Constitution; its exemptions incorporate any 21 constitutionally-required limitation on such disclosures. The State takes no position on whether 22 the Constitution does, in fact, preclude disclosure of the dancers’ licensing information in 23 24 response to PRA requests like the one made by Van Vleet. 25 2 26 27 28 Van Vleet appeared at the hearing and opposing the preliminary injunction. He claimed that he had a First Amendment right to access the information so that he could pray for the Plaintiffs, by name. 3 Plaintiffs also seek certification of a class of all licensed dancers and managers in Pierce County. [Dkt. #33]. That Motion will be resolved in a separate Order. Order - 2 I. 1 2 A. Summary Judgment Standard Summary judgment is appropriate when, viewing the facts in the light most favorable to 3 4 DISCUSSION the nonmoving party, there is no genuine issue of material fact that would preclude summary 5 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 6 7 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 8 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 9 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 10 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 11 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 12 13 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 14 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “summary judgment 15 should be granted where the nonmoving party fails to offer evidence from which a reasonable 16 [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 1220. 17 18 19 B. The PRA. The PRA is a tool to enable citizens to monitor their government. It is not a mechanism 20 for them to examine, exploit, or endanger each other: “[t]he primary purpose of the public 21 records act is to provide broad access to public records to ensure government accountability.” 22 Livingston v. Cedeno, 164 Wash. 2d 46, 52 (2008)(en banc); see also In re Request of Rosier, 23 24 105 Wash. 2d 606, 611 (1986) (the basic purpose and policy of the PRA is to allow public 25 scrutiny of government, rather than to promote scrutiny of particular individuals who are 26 unrelated to any governmental operation.); Hearst Corp. v. Hoppe, 90 Wash. 2d 123 (1978) (the 27 purpose of public disclosure is the “efficient administration of the government,” keeping in 28 Order - 3 1 mind, “the right of individuals to privacy”). The PRA was never intended to facilitate spying or 2 stalking, or to enable a host of other nefarious goals. Thus, the PRA generally requires the 3 disclosure of governmental documents and records to citizens requesting them. It also recognizes 4 that some information should not subject to public disclosure, and provides for redaction in some 5 cases: 6 Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter[.] 7 8 9 10 11 RCW §42.56.070(1) (emphasis added)4. 12 The parties agree that PRA has no express exemption protecting erotic dancers’ 13 14 15 information from disclosure5. The privacy right it recognizes precludes disclosure if information about the person: (1) would be highly offensive to a reasonable person, and (2) is not of 16 legitimate concern to the public. RCW §§ 42.56.050. 17 Plaintiffs argue that the PRA’s “other statute” reference does not include the 18 19 Constitution, because the Constitution is not a statute, and because the PRA elsewhere explains 20 that all exemptions must be narrowly construed in order to ensure maximal disclosure and 21 governmental transparency: “This chapter shall be liberally construed and its exemptions 22 narrowly construed to promote this public policy and to assure that the public interest will be 23 24 fully protected.” RCW §§ 42.56.030. The Plaintiffs claim that because the disclosure of their 25 Though Plaintiffs’ information might be redacted under RCW §42.56.070(1) to exclude any “private” information pursuant to the PRA’s common law privacy protections, neither party argues this, and the Court declines to analyze it. 4 26 27 28 5 Indeed, this court so found in granting the preliminary injunction [Dkt. #26]. Order - 4 1 2 3 4 information that would violate their First Amendment rights, and the PRA does not prohibit that disclosure, it is unconstitutional as applied to them. The State argues that the PRA’s deference to “other statute[s]” is a “catch all” saving clause, which does not require a disclosure that would violate the Constitution: 5 6 7 8 9 10 If the requested records are constitutionally protected from public disclosure, that protection exists without any need of statutory permission, and may constitute an exemption under the PRA even if not implemented through an explicit statutory exemption. In other words, it is not necessary to read the PRA in conflict with the Constitution when the Act itself recognizes and respects other laws (including constitutional provisions) that mandate privacy or confidentiality. 11 [Dkt. # 45 at 4]. citing Seattle Times Co. V. Serko, 170 Wn.2d 581 (2010); Ameriquest Mortgage 12 13 Company v. Washington State Office of the Attorney General, 170 Wn.2d 418, 439-40, (2010) 14 (constitutional preemption of PRA analysis not required because of RCW §§ 42.56.070’s “other 15 statute” exemption accommodates the Constitution); see also Freedom Foundation v Gregoire, 16 178 Wn.2d 686, 310 P.3d 1252 (2013). This interpretation is also consistent with the canon of 17 constitutional avoidance: when a statute is susceptible to more than one construction, the 18 19 interpretation that does not violate the constitution is favored. See Clark v. Martinez, 543 U.S. 20 371, 385, (2005). 21 The State is correct. The PRA, by design, cannot violate the Constitution, and 22 constitutional protections (such as freedom of expression) are necessarily incorporated as 23 24 exemptions, just like any other express exemption enumerated in the PRA. Plaintiffs’ claim that 25 the PRA is unconstitutional as applied because it cannot accommodate a constitutional limitation 26 on disclosure is wrong, and is rejected. 27 28 Order - 5 1 2 3 4 C. Constitutional Protections The issue, then, is whether the Constitution protects Plaintiffs’ information, exempting it from disclosure under the PRA. Plaintiffs argue that, as workers in an erotic dance studio, they are engaging in a form of protected First Amendment expression, and that disclosure of their 5 information would have an unconstitutional chilling effect on that expression. 6 7 It is well-established that erotic dancing is a protected form of expression under the First 8 Amendment: “Courts have considered topless dancing to be expression, subject to constitutional 9 protection within the free speech and press guarantees of the First and Fourteenth Amendments.” 10 Kev, Inc. v. Kitsap Cnty., 793 F.2d 1053, 1058 (9th Cir. 1986).The Ninth Circuit has emphasized 11 that a county’s public disclosure of erotic dance employees’ personal information has an 12 13 14 15 16 17 18 unconstitutional chilling effect on that protected form of expression: The First Amendment does not permit the County to put employees of adult entertainment establishments to the choice of applying for a permit to engage in protected expression in circumstances where they expose themselves to unwelcome harassment from aggressive suitors and overzealous opponents of such activity, or choosing not to engage in such activity out of concern for their personal safety. The chilling effect on those wishing to engage in First Amendment activity is obvious. 19 Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1012 (9th Cir. 2004) (internal quotations 20 omitted). 21 The disclosure of Plaintiffs’ information here would have a similarly unconstitutional 22 chilling effect. As erotic dance studio employees, Plaintiffs are uniquely vulnerable to 23 24 harassment, shaming, stalking, or worse. Plaintiffs have express concern regarding the enhanced 25 risk that disclosure of their real names and other licensing information might bring. They 26 plausibly claim that they would not have engaged in their profession had they known that their 27 erotic license information could be so easily disclosed to any member of the public. This is 28 Order - 6 1 exactly the kind of chilling effect that the Ninth Circuit held to be unconstitutional in Dream 2 Palace. Thus, the Plaintiffs’ information is protected under the First Amendment, and it is 3 exempted from disclosure under the PRA. 4 C. Permanent Injunction. 5 Plaintiffs seek a broad injunction barring the Pierce County Auditor from disclosing all 6 7 8 dancer and manager licenses and license applications to all members of the general public, based on their claim theory that the PRA is unconstitutional as applied. 9 10 A permanent injunction is appropriate when the Plaintiff demonstrates: (1) that she will likely suffer an irreparable injury; (2) that remedies available at law, such as monetary damages, 11 are inadequate to protect against that injury; (3) that, considering the balance of hardships 12 13 between the Plaintiff and defendant, a remedy in equity is warranted; and (4) that the public 14 interest would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange, L.L.C., 15 547 U.S. 388, 391 (2006). 16 The PRA is not unconstitutional as applied. Nevertheless, a permanent injunction is 17 18 appropriate in this case, because no other remedy is sufficient to prevent harm to Plaintiffs, the 19 balance of equities favors them, and the public interest would not be disserved. There is no 20 adequate remedy for the damage to Plaintiff’s safety that could result from an unconstitutional 21 disclosure. There is clearly no hardship to Mr. Van Vleet; he did not even respond to the 22 motion6. Finally, the public interest is best served when the privacy and safety of its members is 23 24 25 protected. Thus, an injunction against this particular disclosure is necessary under the First Amendment, and under the PRA’s “catch all” exemption. RCW §§ 42.56.070. 26 27 28 Ironically, Van Vleet refused to provide his email address, phone number, or physical address to the court. This Order will be mailed to his P.O. box. 6 Order - 7 1 Plaintiffs seek a broad injunction based on the claim that the PRA is unconstitutional as 2 applied. Because it is not, however, the Court will permanently enjoin only the disclosure before 3 it. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1141 (9th Cir. 2009) (an injunction should not 4 be overbroad). Thus, the permanent injunction does not extend beyond Van Vleet’s request in 5 this case. 6 7 II. CONCLUSION 8 Anderson’s determination that the PRA required disclosure of Plaintiff’s licensing 9 10 information was in error. Defendants Pierce County and Andersen are PERMANENTLY 11 ENJOINED from disclosing the information requested to Van Vleet due to the protected nature 12 of Plaintiffs’ license information under the First Amendment, and the PRA’s recognition of that 13 protection in its “catch all” disclosure exemption, RCW §§ 42.56.070). Plaintiff’s motion for 14 Summary Judgment is, to this extent, GRANTED. The case is DISMISSED. 15 16 IT IS SO ORDERED. 17 18 19 Dated this 10th day of August, 2015. 20 21 22 23 A Ronald B. Leighton United States District Judge 24 25 26 27 28 Order - 8
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