case came before the Court on its April 4, 2019, En Banc
Conference to consider the motion to supplement the record
and to take judicial notice, motion to recall mandate and for
sanctions, and motion to disqualify. A majority of the Court
voted in favor of the following result.
therefore, it is hereby
the motion to recall the mandate is denied. Therefore, no
action is taken on the other motions.
Worthington moves this court to recall its mandate in
Worthington v. WestNET, 182 Wn.2d 500, 341 P.3d 995
(2015) (Worthington I). In that case, defendant West
Sound Narcotics Enforcement Team (WestNET) responded to
Worthington's Public Records Act (PRA) lawsuit by
claiming that it was not an entity subject to suit. Our
decision in Worthington I recognized that while
defendants like WestNET-that is, multijurisdictional task
forces formed under the Interlocal Cooperation Act
(ICA) that claim nonentity status-might
be unamenable to suit, they might also make
themselves amenable to suit by behaving inconsistently with
their nonentity designation. We therefore remanded the case
to the superior court to determine whether WestNET had
behaved in that manner.
would not have needed to remand the case if WestNET had been
forthright with this court about its pattern of behaving like
a fully cognizable legal entity with capacity to sue and be
sued. At oral argument, WestNET informed the court that it
had never initiated proceedings in its own name or otherwise
voluntarily appeared in court. But as Worthington later
showed, that was untrue. And Worthington now brings forward
new, undisputedly authentic evidence of WestNET's entity
behavior-a contract that WestNET entered into that required
it to, among other things, keep and maintain certain records.
Because I believe that WestNET's previously undisclosed
behavior would have changed the outcome of
Worthington I-by judicially estopping WestNET from
claiming that it is not a legal entity-I would grant the
motion to recall the mandate and consider the newly
therefore respectfully dissent from the court's denial of
Worthington's motion to recall the mandate.
and Procedural History
is a . . . drug task force formed by an 'Interlocal Drug
Task Force Agreement'" pursuant to the ICA.
Worthington I, 182 Wn.2d at 503. Kitsap County is
one of the governmental entities that was a party to the
interlocal agreement-and therefore part of WestNET.
Id. at 503 n.1.
2007, the WestNET drug task force conducted a drug raid on
Worthington's home." Worthington v.
WestNET, No. 48590-7-II, slip op. At 2 (Wash.Ct.App.
Sept. 19, 2017) (unpublished), amended on recons.
(Nov. 28, 2017) (Worthington II),
review denied, 190 Wn.2d 1018 (2018).
2010, Worthington filed a public records request with WestNET
to disclose records related to the 2007 raid on his home by
the WestNET drug task force. WestNET did not respond."
Id. at 3 (citation omitted) (citing
Worthington I, 182 Wn.2d at 504).
then brought this lawsuit, alleging that WestNET had violated
the PRA. Worthington I, 182 Wn.2d at 504. WestNET
argued that it was not a legal entity and could not be sued
for any purpose. Id. at 505. As WestNET would later
put it, "WestNET is simply [a] framework under which
independent law enforcement agencies can work together to
solve crime. . . . All that the Interlocal Agreement
accomplished was a means by which . . . agencies could
perform their duties in cooperation with other law
enforcement agencies to enhance their independent
efforts." Worthington I, Br. of Resp't at
trial court agreed, granted WestNET's CR 12(b)(6) motion,
and dismissed Worthington's lawsuit. Worthington
I, 182 Wn.2d at 505. The Court of Appeals
granted review. At oral argument, I asked whether
"WestNET [had] ever appeared voluntarily as a plaintiff
or petitioner in any forum, for example, in a forfeiture
case." WestNET told the court that it "has
not ever filed a legal action, as it is not a legal entity to
do so." This statement comported with
WestNET's argument that "the [formation] agreement
does not provide for [WestNET] to initiate forfeitures or
abatements." Worthington I, Suppl. Br. of
Resp't at 5 (emphasis omitted). And when another justice
asked how a citizen would obtain WestNET's records if the
constituent governmental entities did not also have copies of
those records, WestNET responded, "[T]hat is to presume
that there is an entity maintaining records, and that's
what I am saying is there is not an entity. They are not
on those representations, we held that "[t]he court
cannot rely solely on the self-imposed terms of an interlocal
agreement because the document does not reveal whether the
task force, in fact, behaves consistently with that nonentity
designation." Worthington I, 182 Wn.2d at 508.
We therefore remanded the case to the superior court to
determine whether, based on the facts, WestNET could be sued
under the PRA. Id. at 508-09, 512.
discovery on remand, WestNET moved for summary judgment,
which the superior court granted. Worthington II,
slip op. at 4, 10.
then moved for reconsideration, pointing out that he had
public records and discovery documents showing that WestNET
had in fact behaved as a legal entity. See
Worthington II, Clerk's Papers (CP) at 713-31 (Am.
Mot. to Reconsider). In particular, these materials showed
that WestNET had voluntarily filed pleadings as a party and
initiated forfeiture proceedings in its own name-as late as
2015 and in 25 separate cases. Id. at 733-34 (Decl.
of John Worthington), 735-903 (exhibits), 979-1124
(exhibits); see also id. at 2124-29 (Decl. of
Batrice Fredsti) (providing an overview of cases organized by
date), 2131-2439 (exhibits of Worthington's case
materials organized by date, supplemented by materials from
the Kitsap County Prosecuting Attorney's Office). They
also showed that WestNET had conducted a variety of other
activities in its own name, ...