Michael Mockovak v. King County
74459-3
| Wash. Ct. App. | Dec 19, 2016Background
- In 2010 Michael Mockovak was convicted (state trial) of soliciting and attempting to murder his business partner after an investigation by a federal–state task force that used confidential informant Daniel Kultin.
- Task force detective Leonard Carver was an SPD detective assigned to federal roles (FBI Task Force Officer / Special Deputy U.S. Marshal) and worked under FBI supervision during the investigation.
- While incarcerated post-conviction, Mockovak sought public records from King County and the King County Prosecuting Attorney (KCPA) concerning Kultin’s immigration status; the County/KCPA produced redacted records and withheld some material (including an NCIC report), asserting federal law and work-product protections.
- County and KCPA moved for summary judgment; they submitted sealed, unredacted documents for in camera review. The trial court granted defendants’ summary judgment and denied Mockovak’s motion to compel Carver’s deposition.
- Mockovak appealed the summary judgment and the denial of his motion to compel; the Court of Appeals affirmed on timeliness, discovery, PRA exemptions (work product and federal statute), and denied attorney fees to Mockovak.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appeal timeliness | Mockovak filed notice of appeal after summary-judgment and discovery orders but before final ministerial entry; appeal should be allowed. | Orders were final in substance; appeal timely. | Appeal was timely: November orders disposed of substantive issues and were appealable (substance over form). |
| Deposition of task-force member (Carver) — Touhy / jurisdiction | Carver is an SPD employee, not a federal "employee" for Touhy; state court can compel testimony. | Carver served in federal roles and was subject to DOJ/FBI Touhy regulations; state court lacks authority to compel; sovereign immunity also bars enforcement. | Touhy regulations apply to Carver; state court properly denied motion to compel; sovereign immunity and Touhy limit state-court compulsion. |
| Tenth Amendment challenge to applying Touhy | Applying Touhy to a state officer on a joint task force infringes state sovereignty / commandeering. | Carver was a consenting participant in a joint federal–state task force and thus subject to federal supervision; Printz distinguishes compelled duties from consensual cooperation. | No Tenth Amendment violation: appointment and federal supervision make Touhy application permissible in this consensual arrangement. |
| PRA production / work-product and Brady claims | Mockovak contends redactions/withholdings (Appendices A–C and NCIC report) must be disclosed under PRA and Brady; work product waived by disclosures. | Records barred by work-product doctrine (attorney opinions and litigation materials), federal statutes (28 U.S.C. § 534) and Touhy; Brady claims must be raised in criminal proceeding, not a PRA suit; common-interest doctrine prevents waiver. | Court: Brady is not the proper vehicle in PRA action; documents are protected as opinion work product (absolute protection) or regular work product (no substantial need shown); common-interest applies, so no waiver; NCIC withheld under federal statute not waived by limited disclosure. |
Key Cases Cited
- United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (upheld DOJ regulations limiting compelled testimony of federal employees)
- Printz v. United States, 521 U.S. 898 (1997) (distinguishes compelled state officers from consensual federal–state cooperation re: Tenth Amendment)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution's suppression of material favorable to accused violates due process; Brady claims are asserted in criminal proceedings)
- NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995) (one worker may serve two masters; control tests for construing employment/agency relationships)
- Rhodes v. D & D Enterprises, Inc., 16 Wn. App. 175, 554 P.2d 390 (1976) (substance-over-form approach to finality of orders for appealability)
- Concerned Ratepayers Ass'n v. Pub. Util. Dist. No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999) (when a record is "used" by a public agency it may become a public record under the PRA)
- Dever v. Fowler, 63 Wn. App. 35, 816 P.2d 1237 (1991) (work-product protection can extend to documents prepared in anticipation of litigation by non-parties)