John Worthington, Appellant V West Net, Respondent (Majority)
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ILED CO,U r T t,SE APPEALS iS1u1 I 2014 JAN 28 All 9: 54 ST 81 Ili IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43689 -2 -II I JOHN WORTHINGTON, Appellant, LIPIM John Worthington appeals from the superior court' s CR 12( b)( 6) JOHANSON, A.C. J. order dismissing or agency UNPUBLISHED OPINION I WESTNET, his complaint against the " functional equivalent" Worthington claims that WestNET is a public WestNET. of a public agency and that it is bound by the Public We hold that WestNET is not a separate legal entity Records Act (PRA),. chapter 42. 56 RCW. subject to suit. Thus, we affirm. FACTS Worthington task force identify to state WestNET the West Sound Narcotics Enforcement Team, a regional combat WestNET violation. failed to created sued moved drug -related for dismissal as a separate legal entity and ( in under a claim upon which relief could WestNET in any capacity WestNET crime 2) subject western Washington complaining CR 12( b)( 6), be granted of a PRA asserting that Worthington had because the complaint ( 1) failed to under no set of facts could Worthington identify to suit. On reconsideration after initially denying No. 43689 -2 -II WestNET' motion, s the superior court 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), CR 12( b)( 6) cent. be granted. Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, denied, 515 U.S. 1169 ( 1995):. A court should dismiss a claim under 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 Prosecutor' s Office is handling this case as well. abatement proceedings 2 personnel. The Kitsap County No. 43689 -2 -II Criminal Investigative Service entered into an Interlocal Agreement, a " cooperative agreement[ ] for their mutual signed parties in advantage" 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," a separate and regulate in the joint member of efforts 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 Interlocal Agreement provided that the WestNET advisory policy board would be a representative body with members from the program' s various own participating jurisdictions. associated costs with its officers It also provided that each jurisdiction must pay its 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' employees. Additionally, any 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 4 If Worthington seeks records of WestNET activities, he must file PRA requests suit. 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 42.56.010( 1) 5 and subject Indeed, WestNET does have to the PRA. 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 liability for any constitutional violations. 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 Emphasis Estates, Inc. v. Tahoe Reg' l Planning Agency, 440 U. S. 391, 401, 99 S. Ct. 1171, 59 L. Ed. 2d 401 ( 1979) ( involving municipality "); Peters Cir.) ( v. creating " an agency comparable to a county or Delaware River Port Auth. of Pa. & N.J., 16 F. 3d 1346, 1351 -52 ( 3rd compact involving intergovernmental group that maintained independent power to enter into contracts, set and collect 5" interstate Agency" includes tolls, all state and and hold property), cent. denied, 513 U. S. 811 ( 1994). local department, division, bureau, board, agencies. " State agency" commission, or other state includes every state office, Local agency" includes agency. " 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 - -II 2 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 Telford is misplaced because Telford its progeny analyze whether a private entity is the " functional equivalent" of a public 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. HANSON, A.C. J. We concur: { ; 5
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