John Worthington, Appellant V West Net, Respondent (Majority and Order)

Annotate this Case

Download PDF

FILED COURT 01: APPEALS 20MAR IN THE COURT OF APPEALS OF THE STATE OF WA3x1xiN " ^ AM 8: 3 7 T S It DIVISION II " BY No. 43689 -2 -II JOHN WORTHINGTON, Appellant, V. ORDER DENYING MOTION FOR WESTNET, RECONSIDERATION AND GRANTING MOTIONS TO PUBLISH This matter having come before this court on the appellant' s motion for reconsideration and appellant' s and third party Washington Association of Prosecuting Attorneys' motions to publish the unpublished opinion filed January 28, 2014; and the court having considered the motions, the files, and the record herein, it is hereby ORDERED, that the motion for reconsideration is denied; and it is further ORDERED, that the motions to publish are granted. DATED this , day of M ww J ( HANSON, A.C.' ' Y We concur: BJiZGE; J. I MAXA, J. 52014. ILED COURT OF A.DPEALS DIVISID.M II 2914 JAN 28 AN 9= 54 s1 43 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION H I JOHN WORTHINGTON, No. 43689 - 2 H Appellant, V. UNPUBLISHED OPINION WESTNET, John. Worthington appeals from the superior court' s CR 12( b)( 6) JOHANsoN, A.C. J. order dismissing his agency or complaint against the - `-` functional WestNET. Worthington claims that WestNET is a public equivalent". of a public Records Act ( PRA),- chapter agency and that is bound .by the Public. 42.56 RCW. We hold that WestNET is not a separate legal entity subject to suit. Thus, we affirm. FACTS Worthington task force violation. created to sued the West Sound Narcotics Enforcement Team, a regional WestNET combat WestNET moved drug- related crime for dismissal in under western Washington complaining CR 12( b)( 6), of a PRA asserting that Worthington had failed to state a claim upon which relief could be granted because the complaint ( 1) failed to identify WestNET in any capacity and ( 2) under no set of facts could Worthington identify WestNET as a separate legal entity subject to suit. On reconsideration after initially denying No. 43689 -2 -II WestNET' s the motion, court superior Agreement" ( Interlocal Agreement), entities had jointly endeavored to considered WestNET' s " Interlocal Drug Task Force which outlined the framework by which several public enforce controlled substance laws.' The superior court found that WestNET was not-an entity that exists for PRA purposes and, thus, Worthington had failed to state a claim against an existing legal entity, a flaw fatal to his claim. Accordingly, the superior court dismissed Worthington' s suit. ANALYSIS Worthington argues that WestNET is an agency or the " functional equivalent" of an agency, subject to the PRA, and that. WestNET' s Interlocal Agreement does not shield it from the PRA. Worthington, however, has not demonstrated that WestNET is an independent legal entity with the capacity to be sued, so we hold that WestNET. is not an agency or the functional 2 equivalent of one. We review de novo a superior court' s order on a motion to dismiss for failure to state a claim upon which relief can 881 -P: 2d 216 ( 1994); be granted. cert:-denied, Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, dismiss a.claim under_ 111 515 U:S. -- 69 - ( 9.95):: A court-should - CR 12( b)( 6) if it appears beyond a reasonable doubt that no facts exist that would justify recovery. Cutler, 124 Wn.2d at 755. In 2009, Kitsap, Pierce, and Mason Counties, along with the cities of Bainbridge Island, Bremerton, Port Orchard, Poulsbo, and Shelton, and the Washington State Patrol and Naval. Interlocal agreements are governed by chapter 39. 34 RCW, the Interlocal Cooperation Act. 2 The Interlocal Agreement provides that the Kitsap County Prosecutor' s Office will represent WestNET' s affiliated agencies in real and personal property forfeitures and drug nuisance initiated by WestNET- affiliated personnel. proceedings The Kitsap County abatement Prosecutor' s Office is handling this case as well. 2 No. 43689 -2 -II Criminal Investigative Service entered into an Interlocal Agreement, a " cooperative agreement[ ] for their parties mutual advantage" signed in fighting drug- related the Interlocal Agreement pursuant crime. Clerk' s Papers ( CP) at 126. The to RCW 39. 34. 030( 2), which provides that two or more public agencies may enter into agreements with one another for joint or This statute also provides that an interlocal agreement need not establish a cooperative action." separate legal entity to conduct the joint or cooperative undertaking. See RCW 39.34.030(4). Under the Interlocal Agreement, the provide for and enforcement," and a separate regulate in the joint member efforts of the jurisdictions established WestNET " to City, County, State and Federal law forming, "[ t]he parties [ to the Interlocal Agreement] do not intend to create legal entity subject to suit" CP at 127. The Iriterlocal Agreement provided that the WestNET advisory policy board would be a representative body with members from the program' s various participating jurisdictions. It also provided that each jurisdiction must pay its own associated costs with its officers and equipment involved in WestNET, and each participating member jurisdiction constitutes an independent contractor that lacks authority to bind other- parties ' personnel to the' Interlocal Agreement assigned which shall to WestNET " be solely and or other parties' Additionally, any -- employees. shall be considered employees of the contributing agency, exclusively responsible for that employee."' CP at 128. Finally, the Interlocal Agreement provides that WestNET personnel - will conform to their individual 3 The Interlocal Agreement cites RCW 10. 93. 040, which provides that any liability or claim arising through the exercise of an officer acting within her or his duty becomes the commissioning agency' s responsibility unless the officer acts under another agency' s direction and control or unless the liability is otherwise allocated under a written agreement between the primary commissioning agency and another agency. 3 No. 43689 -2 -II agency' s rules and regulations, and any disciplinary actions will be the individual agency' s responsibility. Based on these Interlocal Agreement provisions, WestNET is not its own legal entity subject to suit4 If Worthington seeks records of WestNET activities, he must file PRA.requests with WestNET' s affiliate jurisdictions. Worthington' s only argument is that because WestNET has a policy board, WestNET itself is a " board" and thus an agency under the definition set forth in RCW 42.56. 0 10( 1) 5 and subject to the PRA. Indeed, WestNET does have regularly to discuss WestNET business. a " WestNET Policy Board" that meets But WestNET' s policy board does not necessarily qualify WestNET as a " board" or agency under the PRA because, as it is configured, WestNET does not appear to be an independent legal entity at all. 4 Worthington cites federal cases for the proposition that intergovernmental organizations are subject to judicial review. For example, he quotes dicta from Hervey v. Estes, 65 F. 3d 784, 792 . 9th Cir. 1995), but mischaracterizes the court' s opinion by failing to include the full passage: We caution that TNET' s actions are not beyond judicial review. If, as the record indicates, .TNET -is -designed to function as an informal association of various governmental entities setting joint policies and practices for conducting drug investigations and raids, its component members may be sued and may be subject to joint and several liabilityfor any constitutional violations. Emphasis added.) Hervey suggests that a plaintiff claiming constitutional violations could sue component members" of the intergovernmental group, not the group as an independent entity. Worthington' s other cases similarly involve distinguishable scenarios. See Lake Country Estates, Inc. v. Tahoe Reg' l Planning Agency, 440 U.S. 391, 401, 99 S. Ct. 1171, 59 L. Ed. 2d 401 ( 1979) ( compact creating " an agency comparable to a county or J., 16 F. 3d 1346, 1351 -52 ( 3rd ' Delaware River Port Auth. of Pa. & N. involving interstate municipality "); Peters Cir.) ( v. involving intergovernmental group that maintained independent power to enter into contracts, set and collect tolls, and hold property), cent. denied, 513 U.S. 811 ( 1994). 5" Agency" includes all state and local department, division, bureau, board, agencies. " State agency" includes every state office, agency. " Local agency" includes commission, or other state every county, city, town, municipal corporation, quasi -municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency. 4 No. 43689 - 2 H Worthington contends, in the alternative, that we should perform a Telford balancing test to determine whether WestNET was the " functional equivalent" of a public agency subject to the PRA. See Telford v. Thurston County Bd Of Comm' rs, 95 Wn. App. 149, 161 -66, 974 P.2d 886, review and denied, 138 Wn.2d 1015 ( 1999). But his reliance on Teford is misplaced because Telford its progeny analyze whether a private entity is the " functional of a public equivalent" agency. Here, no one suggests that WestNET is a private entity. We hold that WestNET is not a separate legal entity subject to suit. - Accordingly, the superior court properly dismissed Worthington' s complaint for failure to state a claim. Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040, it is so ordered. p p/ J HANSON, A.C.J. We concur: 5 I i

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.