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Henne v. City of Yakima

Court of Appeals of Washington, Division 3

November 7, 2013

Michael Henne, Respondent,
The City of Yakima, Appellant

Appeal from Yakima Superior Court. Docket No: 11-2-03986-1. Date filed: 05/18/2012. Judge signing: Honorable Blaine G Gibson.

Mark D. Watson, Robert C. Tenney, and Peter M. Ritchie (of Meyer, Fluegge & Tenney PS ), for appellant.

Lish Whitson and Kristy L. Stell (of Lish Whitson PLLC ), for respondent.

Milton G. Rowland on behalf of Washington State Association of Municipal Attorneys, amicus curiae.

AUTHOR: Teresa C. Kulik, J. Kevin M. Korsmo, C.J. concurs. George B. Fearing, J. (concurring in part and dissenting in part).


Page 1189

Kulik, J.

[177 Wn.App. 584] ¶ 1 Michael Henne, a Yakima police officer, filed a complaint against the city of Yakima (City) for alleged retaliatory use of internal investigations. The trial court denied the City's anti-SLAPP [1] motion to strike several [177 Wn.App. 585] claims in Mr. Henne's complaint. Mr. Henne then amended his complaint to remove the offending claims.

¶ 2 We conclude that the City is a legal entity and, therefore, could file its motion to strike under RCW 4.24.525. But we also conclude that the offending claims were removed from Mr. Henne's complaint and, thus, the issue is now moot. Accordingly, we dismiss the appeal.


¶ 3 The City hired Michael Henne as a police officer in 1998 and promoted him to sergeant in 2007. Between January 2008 and February 2011, the City received four reports of potential misconduct by Officer Henne within the scope of his employment as a police officer. These complaints included allegations of (1) rude conduct with other police officers, (2) dishonesty involving an alleged assault against Officer Henne, (3) a rule violation failure to broadcast emergency information about a suspect's location, and (4) a possible illegal search. The City subsequently conducted internal investigations of the reports and ultimately cleared Officer Henne of all allegations.

¶ 4 On November 4, 2011, Officer Henne filed a complaint in Yakima County Superior Court against the City, alleging in part that after he was promoted to sergeant, Lieutenant Nolan Wentz began harassing him and telling other officers that Officer Henne should not have been promoted. Officer Henne alleged that some police officers started harassing him by filing false reports against him, which resulted in unwarranted internal investigations. Officer Henne also maintained that the City failed to discipline city employees when they disseminated information about the investigations to other city employees and in the community. Officer Henne complained that the City failed to follow its own internal investigation policies by neglecting to investigate facts in his favor and by failing to give him notice of findings or copies of internal investigation [177 Wn.App. 586] files. Officer Henne asserts that even after he was cleared of all allegations, he was transferred to a less desirable position and " had to endure continuing criticism and harassment by [police department] officers and leadership." Clerk's Papers (CP) at 10.

¶ 5 Officer Henne's causes of action included, in relevant part, that the City (1) interfered with his rights by reassigning him to a less desirable position after he refused to resign from his position while he was under investigation, (2) harassed and retaliated against him by subjecting him to numerous unwarranted internal investigations, and (3) failed to investigate and discipline numerous officers for their unprofessional behavior. Officer Henne asked for damages due to lost wages and benefits, lost opportunities for advancement, emotional distress, pain, embarrassment, and humiliation. He also asked for injunctive relief to enjoin the City from perpetuating the hostile work environment.

¶ 6 The City filed a motion on December 30, 2011, to strike the claims related to the internal investigations under Washington's anti-SLAPP statute. It maintained that these claims were protected under the statute because they involved " 'public participation and petition.'" CP at 15.

¶ 7 On January 30, 2012, Officer Henne moved to amend the complaint under CR 15 and strike the City's motion as moot. He pointed out that CR 15 allows for liberal amendment of a complaint unless the defendant

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can show actual prejudice. He also argued that the City's motion to strike " is brought on its mistaken belief that the Plaintiff is claiming the Defendant unlawfully harassed and retaliated against Plaintiff by initiating and/or conducting internal investigations." CP at 129. He emphasized that the heart of his amended complaint was the City's negligent hiring and supervision of city employees and the breach of police department policies and procedures relating to internal investigations outlined in the collective bargaining agreement and the civil service rules. Officer Henne explained [177 Wn.App. 587] that he was not alleging that complaints should not be investigated, but that the investigations were improperly conducted. The City countered that Officer Henne could not avoid the consequences of the anti-SLAPP statute by amending the complaint.

¶ 8 At the hearing, the City argued that the anti-SLAPP statute was designed to protect local governments from actions that are based upon communications and proceedings in those local governments, i.e., lawsuits based on public participation, pointing out that " this lawsuit is about ... suing the city for the alleged acts of its agents in reporting internal investigation matters." CP at 318. Officer Henne countered that the government is not a " person" for purposes of the anti-SLAPP statute.

¶ 9 The court denied the motion to strike and granted Officer Henne's motion to amend. Officer Henne's amended complaint removed all allegations related to the City's internal investigations. The remaining causes of action included allegations that the City failed to adequately supervise the chief of police and curtail the harassment by other police officers against Officer Henne, breached internal investigation policies by failing to keep the internal investigation confidential, and improperly removed Officer Henne from his position and improperly tried to intimidate him into resigning.

¶ 10 The City appeals.



¶ 11 The dispositive issue is whether the amendment of the complaint moots this appeal. The City argues that Officer Henne cannot avoid the anti-SLAPP statute by amending the complaint to remove the claims arising from the internal investigations, which it claims are protected under the SLAPP statute. Citing Navellier v. Sletten, 106 Cal.App.4th 763, 772, 131 Cal.Rptr.2d 201 (2003), it urges [177 Wn.App. 588] us to follow California precedent, which generally prohibits an " eleventh-hour amendment to plead around a motion to strike under the anti-SLAPP statute." California courts reason that allowing a SLAPP plaintiff leave to amend the complaint once the court finds the defendant has made a prima facie showing undermines the legislature's goal of quick dismissal of meritless SLAPP suits. Id. (quoting Simmons v. Allstate Ins. Co., 92 Cal.App.4th 1068, 1073-74, 112 Cal.Rptr.2d 397 (2001)).

¶ 12 Officer Henne counters that once he amended his complaint to remove the claims arising from the internal investigations, the City's appeal was moot. He points out that he is not complaining about the City's internal investigations of him; instead, the amended complaint alleges that the City failed to follow its own policies regarding such investigations. In sum, he argues that the operative document before us is the amended complaint, which effectively disposes of the entire appeal.

¶ 13 Here, the motion to amend was filed before the City filed its answer and before the parties engaged in discovery. There is no showing of prejudice, dilatory practice, or undue delay. A different situation might be presented if the City had notified Mr. Henne's counsel that the claims violated the anti-SLAPP statute, had warned that a motion would be filed if Mr. Henne did not voluntarily amend his complaint, and had given him a reasonable amount of time to make that amendment and yet Mr. Henne had failed to take action--thereby making it necessary for the City to prepare a motion. Absent prejudice, dilatory practice, or undue delay, Officer Henne had a right to amend his complaint while the anti-SLAPP motion was pending. Thus, the amended complaint supersedes the original complaint. With the

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removal of the allegations relating to the City's internal investigations of Officer Henne, the issues raised in this appeal are moot.

[177 Wn.App. 589]The City as a Legal Entity under RCW 4.24.525

¶ 14 RCW 4.24.525 is significantly broader than RCW 4.24.510 in scope and purpose and contains a detailed definition that includes " an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or any other legal or commercial entity." RCW 4.24.525(1)(e). A California court [2] interpreting California's anti-SLAPP statute has held that " [t]he anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental speakers." Bradbury v. Superior Court, 49 Cal.App.4th 1108, 1117, 57 Cal.Rptr.2d 207 (1996) (emphasis added). The court reasoned that " [g]overnment can only speak through its representatives" and that " [a] public entity is vicariously liable for the conduct of its employees acting within the scope of their employment." Id. at 1114. Further, noting that under the federal civil rights statute, municipalities and counties are treated as persons, the court held that a " person" under the California anti-SLAPP statute " must be read to include a governmental ...

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