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Worthington v. West Net

Supreme Court of Washington

April 10, 2019

WEST NET, Respondent.


         This 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.

         Now, therefore, it is hereby


         That the motion to recall the mandate is denied. Therefore, no action is taken on the other motions.

         John 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)[1] 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)[2] 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.

         But we 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 discovered evidence.

         I therefore respectfully dissent from the court's denial of Worthington's motion to recall the mandate.

         Facts and Procedural History

         I. The Underlying Proceedings

         "WestNET 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.

         "In 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).

         "In 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).

         Worthington 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 8-9.

         The 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 affirmed.[3]

         We 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."[4] WestNET told the court that it "has not ever filed a legal action, as it is not a legal entity to do so."[5] 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 maintaining records."[6]

         Relying 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.

         After discovery on remand, WestNET moved for summary judgment, which the superior court granted. Worthington II, slip op. at 4, 10.

         Worthington 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, ...

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