SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Petitioner, v. STATE OF WASHINGTON, DEPARTMENT OF EARLY LEARNING, a state agency, and EVERGREEN FREEDOM FOUNDATION, a nonprofit corporation, Respondents.
NO. 96578-1
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
OCT 3 1 2019
EN BANC
FACTS
The Department of Early Learning (Department) administers the WCCC, which subsidizes childcare for low income families. The subsidies fund childcare in both commercial and private residential settings, but this
On November 2, 2016, the Foundation submitted a PRA request to the Department seeking the following:
- The first name, last name, work mailing address, and work email address of all licensed family child care providers, as defined by
RCW 41.56.030(7) . - The first name, last name, work mailing address, and work email address of all license-exempt family child care providers, as defined by
RCW 41.56.030(7) .
CP at 909.
The Department informed SEIU 925 that, in the absence of a court injunction, it would release all the requested information to the Foundation on November 22, 2016. On November 8, 2016, Washington voters approved Initiative 1501 (I-1501), which “prohibit[s] the release of certain public records that could facilitate identity theft and other financial crimes against seniors and vulnerable individuals.” Id. at 299. Two of the initiative‘s provisions address the release of records responsive to the Foundation‘s PRA request. One provision, now codified at
Procedural History
Three weeks before the new law took effect, SEIU 925 filed a complaint for declaratory and injunctive relief barring the Department from releasing the records. It sought a temporary restraining order and a preliminary injunction. The parties agreed to extend any deadline for release until after the court could rule on the motion for a preliminary injunction. The trial court issued its ruling December 9, 2016, one day after I-1501 took effect. It denied injunctive relief but ordered the Department to delay release so SEIU 925 could appeal the ruling. Division Two granted the Department‘s motion for an emergency injunction, pending the appellate court‘s final decision. That court affirmed on September 18, 2018. Serv. Emps. Int‘l Union Local 925 v. Dep‘t of Early Learning, No. 49726-3-II (Wash. Ct. App. Sept. 18, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049726-3-II%20Unpublished%20Opinion.pdf.
In the Court of Appeals, SEIU 925 argued that the trial court erred by failing to apply I-1501 (specifically, the provisions later codified at
About six weeks after the Court of Appeals issued its decision in this case, another Division Two panel reached the opposite conclusion in a case with identical relevant facts. The court in Puget Sound Advocates for Retirement Action v. Department of Social & Health Services (PSARA) held that, even if I-1501 did not apply retroactively, it still barred the release of records responsive to requests already pending upon its enactment. No. 50430-8-II, slip op. at 7 (Wash. Ct. App. Oct. 30, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2050430-8-II%20Unpublished%20Opinion.pdf. The PSARA court reasoned that the plain language of
We granted SEIU 925‘s petition for review. SEIU 925 v. Dep‘t of Early Learning, 192 Wn.2d 1022 (2019).
ANALYSIS
All the issues presented in this case are questions of statutory interpretation. These are questions of law reviewed de novo. Williams v. Tilaye, 174 Wn.2d 57, 61, 272 P.3d 235 (2012).
SEIU 925 argues that the Court of Appeals should have applied the analysis used in PSARA, according to which
If a PRA request creates a “vested right” to access responsive records, there is no need to determine what event triggers
I. A PRA Request Does Not Create a Vested Right To Examine Responsive Records
The vested right doctrine is a constitutional protection for property rights. Vashon Island Comm. for Self-Gov‘t v. Boundary Review Bd., 127 Wn.2d 759, 768, 903 P.2d 953 (1995). It protects private citizens against legislative takings and impairment of contracts. See Gillis v. King County, 42 Wn.2d 373, 376, 255 P.2d 546 (1953). Accordingly, even if a new law is made expressly retroactive, it will not be given retroactive effect if this infringes a true vested right. Caritas, 123 Wn.2d at 413-15. A retroactive amendment does not infringe a vested right merely because it disappoints expectations. See Omega Nat‘l Ins. Co. v. Marquardt, 115 Wn.2d 416, 433, 799 P.2d 235 (1990) (“A party has no vested right in the continuation of existing statutory law.“). On the contrary, “[a] vested right involves ‘more than . . . a mere expectation‘” and requires an actual “‘title, legal or equitable, to the present or future enjoyment of property‘.” In re F.D. Processing, Inc., 119 Wn.2d 452, 463, 832 P.2d 1303 (1992) (second alteration in original) (quoting Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984)).
Consistent with this standard, this court has found a vested right to a method of Medicaid reimbursement for land already purchased, Caritas, 123 Wn.2d at 413-15, and to a perfected security interest in a debtor‘s inventory and accounts, F.D. Processing, 119 Wn.2d at 463. In contrast, we have not found a vested right to the continued existence of a zoning scheme under which a developer began, but did not complete, an application for a building permit, Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wn.2d 242, 247-48, 254-61, 218 P.3d 180 (2009) (lead opinion); id. at 261-63 (Madsen, J., concurring), or to the ability to send one‘s child to a particular public school, Citizens Against Mandatory Bussing v. Palmason, 80 Wn.2d 445, 452, 495 P.2d 657 (1972).
The Court of Appeals opinion in this case provides no analysis explaining why a PRA request creates a vested right. Nor does Dragonslayer, the sole authority that court cited for this point. Each opinion simply states in conclusory fashion that an amendment creating a new exemption from PRA requirements cannot be “remedial” (and therefore presumptively retroactive) because it affects a vested right (to inspect or copy records). SEIU 925, No. 49726-3-II, slip op. at 12; Dragonslayer, 139 Wn. App. at 449. This is incorrect. It is true that an amendment will not be deemed “remedial” if it affects a substantive or a vested right, F.D. Processing, 119 Wn.2d at 462-63, and there is no dispute in this case that new exemptions to the PRA affect the substantive right to access government records. But a PRA request is nothing like the activities this court has held to create constitutionally vested rights. To the extent Dragonslayer and the Court of Appeals opinion in this case hold otherwise, they are overruled.
II. RCW 43.17.410(1) Is Triggered by the Agency‘s Release of Records Rather Than the Original Request; It Therefore Applied When the Trial Court Ruled on the Preliminary Injunction
As noted, the Court of Appeals in this case purported to recognize a general rule, applicable to any “statute affecting the disclosure of records.” SEIU 925, No. 49726-3-II, slip op. at 13. Under this rule—which the Court of Appeals derived solely from footnoted dicta in a distinguishable case—the law governing a pending public records request is always “the law in existence at the time the request was made.” Id. at 13 (citing John Doe A, 185 Wn.2d at 375 n.2). This was error.
The “triggering event” analysis is fundamentally an inquiry into legislative intent. See In re Estate of Haviland, 177 Wn.2d 68, 75-76, 301 P.3d 31 (2013). The John Doe A dicta aside, nothing in the PRA itself indicates any intent to adopt a blanket
To determine what event triggers the application of new law, courts look to the subject matter regulated by the statute in question and to the statute‘s plain language, with the goal of effectuating the legislature‘s (or, as here, voters‘) intent. Id.; Utter ex rel. State v. Bldg. Indus. Ass‘n of Wash., 182 Wn.2d 398, 410 n.3, 341
P.3d 953 (2015) (courts interpret voter initiatives according to general rules of statutory construction (citing City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d 91, 97, 758 P.2d 480 (1988))). Because it tends to implicate retroactivity concerns, any triggering event analysis must address these indicia of intent in light of relevant constitutional interests (e.g., ex post facto clause protections and vested rights), Flint, 174 Wn.2d at 547-48, and “[e]lementary considerations of fairness,” In re Estate of Burns, 131 Wn.2d 104, 110, 928 P.2d 1094 (1997) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)); cf. State v. Jefferson, 192 Wn.2d 225, 246-49, 429 P.3d 467 (2018) (GR 37, governing Batson2 challenges, is triggered by voir dire rather than direct appeal because the new rule implicates substantial constitutional rights and thus attaches new legal consequences to triggering event). In this case, that analysis supports SEIU 925‘s position and the PSARA court‘s conclusion: the event triggering I-1501‘s relevant provisions is not the request for records but the agency‘s “obligation under the PRA to actually release [them].” PSARA, No. 50430-8-II, slip op. at 8.
The provisions relevant here appear in part three of the initiative, entitled “Prohibiting the Release of Certain Public Records That Could Be Used To
Victimize Seniors and Vulnerable Individuals.” CP at 304. By its plain terms, this part of the initiative governs release, not requests.
The statement of intent in section 7 of part three of I-1501 also refers explicitly to the “release of public records“:
It is the intent of part three of this act to protect seniors and vulnerable individuals from identity theft and other financial crimes by preventing the release of public records that could be used to victimize them. Sensitive personal information about in-home caregivers for vulnerable populations is protected because its release could facilitate identity crimes against seniors, vulnerable individuals, and the other vulnerable populations that these caregivers serve.
Id.
Two other provisions in I-1501‘s part three also support SEIU 925‘s position. The first is section 10, the provision relied on by the PSARA court, and now codified at
To protect vulnerable individuals and their children from identity crimes and other forms of victimization, neither the state nor any of its agencies shall release sensitive personal information of vulnerable individuals or sensitive personal information of in-home caregivers for vulnerable populations.
general rule barring release.
To be sure, if there were any ambiguity here, the PRA‘s broad disclosure mandate would compel us to affirm the Court of Appeals. See
no ex post facto concerns3 and infringes no vested rights, we hold, consistent with the Court of Appeals’ analysis in PSARA, that
CONCLUSION
Stephens, J.
WE CONCUR:
Wiggins J.
González, J.
Owens J.
Serv. Emp. Int‘l Union Local 925 v. State, Dep‘t of Early Learning, et al.
No. 96578-1
MADSEN, J. (concurring)—I agree with the majority that Initiative 1501 (I-1501) prevents the release of the names and addresses of individuals providing childcare under Washington‘s Working Connections Child Care program that were requested prior to I-1501‘s enactment. I also agree that the Public Records Act (PRA),
ANALYSIS
Generally, the law applicable to a case is that which is in effect when a trial court rules. State v. Brewster, 152 Wn. App. 856, 859, 218 P.3d 249 (2009). Here, we are asked to decide if this rule controls when a PRA request is made, the applicable law on exemptions changes, and a party seeks injunctive relief applying the changed law. This is a narrow question, and our answer to it must be considered in light of the unique procedural posture in which it arises.
Turning first to retroactivity, the language of I-1501 fairly conveys the intent of the voters to apply the initiative to pending PRA requests. Intent for retroactive application may be “fairly convey[ed]” from the language of an initiative. State v. Zornes, 78 Wn.2d 9, 13, 475 P.2d 109 (1970) (plurality opinion), overruled on other grounds by United State v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). The allegedly retroactive law at issue in Zornes cited to language stating that the provisions “‘shall not ever be applicable to any form of cannabis‘” and noted that “not ever” would be unnecessary if the legislature intended the act to only operate prospectively. Id. at 13 (quoting LAWS OF 1969, ch. 256, § 7(13)); see also State v. Rose, 191 Wn. App. 858, 865, 365 P.3d 756 (2015) (examining Zornes). Here, I-1501 does not contain similarly unequivocal words. But such unequivocal statements are not necessarily required to evidence retroactive intent.
In State v. Grant, a defendant appealed her conviction for intoxication on a public highway in violation of
Similar to Zornes, Grant, and Rose, the statement of intent in this case applies to pending records requests. I-1501 states that it intends to ”protect seniors and vulnerable individuals from identity theft and other financial crimes by preventing the release of public records that could be used to victimize them.” Clerk‘s Papers (CP) at 304 (section 7) (emphasis added). The intent statement of part III goes on to explain that the release of personal information about in-home caregivers “is protected because its release could facilitate identity crimes against seniors, vulnerable individuals, and the other vulnerable populations that these caregivers serve.” Id. The repeated reference to “release” of personal information is not strictly prospective; pending requests would also release the information protected by the initiative. And this protection would be meager indeed if it applied solely to records released after I-1501‘s effective date—it would leave out the personal information in pending PRA requests and leave seniors and their caregivers vulnerable to financial crimes. I-1501 states that the law is to be liberally construed to promote the policy of protecting in-home caregivers for vulnerable populations. Id. at 306 (section 12).
The plain language of the initiative fairly conveys the voters’ intent to stop the release of sensitive information of vulnerable populations and thus stop fraudulent actors who “continue to prey on them.” State of Washington Voters’ Pamphlet, General Election 35 (Nov. 8, 2016). The terms “release” and “protection” indicate that a voter would assume I-1501 applies to pending PRA requests.
Accordingly, I would hold that I-1501 applies retroactively and the trial court
The majority analyzes I-1501‘s prospective application and concludes that the triggering event for I-1501‘s relevant provisions is an agency‘s obligation to release requested records. Majority at 12. I disagree. In light of the plain language of the initiative and the procedural context of this case, it is not the agency‘s release of records but the trial court‘s order to release records that triggers I-1501‘s application. Tethering I-1501 to an agency‘s release would directly conflict with this court‘s recent decision in Gipson. In Gipson, we concluded that an agency is not required to continuously monitor for changes in exemptions it asserted when a PRA request is first received, regardless of the number of installments of records necessary to satisfy the request. Gipson, slip op. majority at 9, 13 (Madsen, J.). Under the majority‘s approach in the present case, an agency responding to a single voluminous request would be required to re-review a claimed exemption for every installment of records it releases—expressly contrary to Gipson. The majority‘s holding is unnecessarily broad and undercuts decided PRA case law without acknowledgment or explanation. This conflict could be easily avoided by tying I-1501‘s triggering event to the trial court‘s decision regarding releasing requested records rather than to an agency‘s obligation to release requested records. While I cannot join the majority‘s holding in this respect, I nevertheless agree that I-1501 applied and barred release of the requested records.
With these considerations in mind, I respectfully concur.
Madsen, J.
Fairhurst, C.J.
Yu, J.