Gontmakher v. City of Bellevue
Gontmakher v. City of Bellevue
Opinion of the Court
— The legislature enacted RCW 4.24.510 to encourage the reporting of potential wrongdoing to governmental entities.
Facts
Arkadi and Yelena Gontmakher purchased a two-acre plot in Bellevue’s Bridle Trails neighborhood. In March 1999, the Gontmakhers submitted a short plat application to the city of Bellevue to divide the property into two lots. The Bellevue City Code requires that significant trees be retained during the permit approval and review process.
In January 2001, the Gontmakhers entered into a contract with a third party to sell a portion of the property for $650,000. The sale was contingent upon the Gontmakhers receiving preliminary short plat approval by October 1, 2001.
The Gontmakhers filed a second short plat application on February 20, 2001. On February 28, 2001, the City informed the Gontmakhers that their application was incomplete and that they had 60 days to complete the application.
On July 23, 2001, Jean Taylor, the Bellevue city planner assigned to the Gontmakher application, sent an e-mail to Bob Lombard from the utilities department, asking for his comments on the application and indicating that she hoped to have her staff report regarding the Gontmakher application completed by July 30, 2001.
Concerned about the clear-cutting, Taylor discussed the situation with her supervisor, Dan Hardin, and the Director of Land Use Planning, Carol Helland. After the discussion, Taylor contacted the DNR to report the Gontmakhers’ actions. On July 24, 2001, the City put the short plat application on hold pending the DNR review.
On August 28, 2001, a forester from the DNR visited the property and determined that the Gontmakhers’ clear-cutting violated the Forest Practices Act of 1974, chapter 76.09 RCW. The DNR issued a stop work order on September 7, 2001, which mandated a six-year moratorium on developing the property. As required by the stop work order, the City cancelled the Gontmakhers’ short plat application. The Gontmakhers filed an appeal with the Forest Practices Appeal Board. On September 28, 2001, the DNR rescinded the stop work order and the City reinstated the short plat application.
In February 2002, the Gontmakhers sued the City, claiming that its “conduct was arbitrary, capricious, unlawful, and/or exceeded its lawful authority,” and therefore violated RCW 64.40.020.
In February 2003, the City and the Gontmakhers filed cross motions for summary judgment. The trial court granted the City’s motion for summary judgment and dismissed the Gontmakhers’ motion. The City also sought attorney fees and expenses under RCW 4.24.510 and RCW 64.40.020(2). The trial court awarded attorney fees of $64,920 and expenses of $6,106.41 under both statutes. The Gontmakhers appeal, challenging the trial court’s grant of summary judgment and award of attorney fees and expenses.
Standard of Review
Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The appellate court will engage in the same inquiry as the trial court and may affirm an order granting summary judgment on any basis supported by the record. “The law is clear that
Discussion
We first address whether the City is a “person” under RCW 4.24.510. The statute provides:
A person who communicates a complaint or information to any branch or agency of federal, state, or local government... is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys’ fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars. Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.
When interpreting a statute, the court’s primary objective is to determine the legislature’s intent and, if clear, the court must afford the statute its plain meaning. Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 10-11, 43 P.3d 4 (2002). For purposes of construing statutes, RCW 1.16.080(1) provides: “[t]he term ‘person’ may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual.” RCW 1.16-.080(1) (emphasis added).
The Gontmakhers, on the other hand, argue that the plain meaning of “person” is limited to citizens with rights
While protecting citizens may have been the legislature’s primary motivation in enacting RCW 4.24.500 through .520, there is no evidence that the legislature intended to limit the scope of the statute to exclude governmental entities. The legislature is presumed to know the general definition of “person” under RCW 1.16.080. If the legislature intended to employ a limited definition of “person,” the normal and expected practice would be for it to expressly do so.
Additionally, there is no compelling policy reason to restrict the application of RCW 4.24.510 to nongovernmental entities. The Gontmakhers argue that the absolute immunity afforded under the statute provides a disincentive for governmental actors to respect citizens’ rights. This
There was nothing unusual about the City of Bellevue’s communication with DNR regarding the Gontmakher Property. Information regarding forest practices, such as the practices observed on the Gontmakher Property, is important to DNR to ensure common understanding of jurisdiction and DNR rules as they relate to a specific activity. DNR encourages, and routinely receives, communications from cities, counties and neighbors throughout the State regarding forest practices like the timber harvesting on the Gontmakher Property.
(Emphasis added.) This statement supports the conclusion that there is a strong public policy rationale for including governmental entities in the definition of “person.”
In arriving at this conclusion, we are aware of a recent Division Three opinion that addresses, in passing, whether a governmental entity is a “person” under RCW 4.24.510. In Skimming v. Boxer, 119 Wn. App. 748, 82 P.3d 707 (2004), Division Three considered whether Spokane County was entitled to immunity under RCW 4.24.510 when the county’s executive officer commented to a newspaper about a citizen. The court concluded, in dicta, that the county was not entitled to immunity under RCW 4.24.510:
*373 On its face, the statute does not apply here for a number of reasons. First, the alleged defamatory comments were . . . communications to a newspaper, not to a public officer. Second, the communication could not have been intended to influence government action or outcome. Right-Price [Recreation, L.L.C. v. Connells Prairie Cmty. Council], 146 Wn.2d [370,] 382 [, 46 P.3d 789 (2002)] .... Third, the action must be against a non-government individual or organization. Id. Ms. Boxer is chief executive officer of Spokane County, and Spokane County is a government entity to whom complaints under this statute are protected. And, finally, the communication does not relate to a substantive issue of interest or social significance.
Skimming, 119 Wn. App. at 758 (emphasis added). The italicized statement is made without analysis, and the conclusion is not central to the court’s holding.
The citizens’ groups characterize Right-Price’s suit against them as a Strategic Lawsuit Against Public Participation (SLAPP). A SLAPP primarily involves “communications made to influence a governmental action or outcome.” George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out 8 (1996). The communications result “in (a) a civil complaint or counterclaim (b) filed against nongovernment individuals or organizations ... on (c) a substantive issue of some public interest or social significant.” Id. at 8-9.
*374 The citizens’ groups refer to former RCW 4.24.510 as the “anti-SLAPP statute.” Regardless of the label, we examine the elements of the statute and find they are applicable to this case.
Right-Price, 146 Wn.2d at 382 (emphasis added). The court in Right-Price merely discussed the general characteristics of SLAPP suits and did not address whether the legislature intended to restrict the scope of RCW 4.24.510. Thus, the general characteristics of a SLAPP lawsuit, as cited by the Gontmakhers and the court in Right-Price, do not affect our analysis because we look only to the statute as written. We decline to follow Skimming in concluding that RCW 4.24.510 applies only to nongovernmental entities. We hold, after examining RCW 4.24.510 as written, that RCW 4.24-.510 does not preclude application to governmental entities. Because the City is a person under RCW 4.24.510 and the Gontmakhers’ claim is based solely on the City’s communication to the DNR, we affirm the trial court’s grant of summary judgment in favor of the City.
Affirmed. The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
Baker and Schindler, JJ., concur.
RCW 4.24.510 is often characterized as Washington’s “anti-SLAPP” statute. SLAPP is an acronym for Strategic Lawsuits Against Public Participation. See generally George W. Pring & Penelope Canan, Strategic Lawsuits Against Public Participation (SLAPPS): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev. 937 (1992).
Bellevue City Code 20.20.520.
The DNR independently investigated the Gontmakhers. The City did not participate in the investigation beyond Taylor’s initial communication.
In their opening brief, the Gontmakhers state that the short plat application was approved on October 24,2001. The letter to the Gontmakhers informing them of approval was dated October 15, 2001 and listed the publication date as October 25, 2001. The discrepancy in date does not affect our analysis.
The LUPA petition is not before this court.
The Gontmakhers also brought a claim tinder 42 U.S.C. § 1983 and a tortious interference with business expectancy claim. Both of these claims were dismissed prior to the trial court’s decision on summary judgment and are not before this court.
RCW 4.24.510 has already been applied to entities, as opposed to natural persons, including a community council and a bank. See Right-Price Recreation, L.L.C. v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 384, 46 P.3d 789 (2002); Dang v. Ehredt, 95 Wn. App. 670, 683-86, 977 P.2d 29 (1999).
The Gontmakhers correctly point out that the courts must look at the context of the statute and related statues when determining the plain meaning of a particular statutory provision. Campbell & Gwinn, 146 Wn.2d at 11 (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 48A:16, at 809-10 (6th ed. 2000)).
The Gontmakhers argue that RCW 4.24.510 does not apply to the City because the City does not possess rights under the First Amendment. While the comment to the statute does state that SLAPP lawsuits, in general, are meant to curb the exercise of the First Amendment rights, it does not restrict the scope of the statute. Thus, we do not address whether the City, as a municipal corporation, has rights under the first amendment to the United States Constitution and article I, section 5 of the Washington State Constitution. We do note, however, that cities have an interest in speaking on behalf of their constituents.
From the opinion, we do not know how extensively this particular issue was briefed. Additionally, because RCW 4.24.510 clearly did not apply because the communication was not to a governmental agency, analyzing whether the statute excludes immunity for governmental entities was not central to the court’s decision and explains the passing comment and absence of analysis. On the other hand, we received extensive briefing on the precise issue of whether RCW 4.24.510 applies to governmental entities.
Reference
- Full Case Name
- Arkadi Gontmakher v. The City of Bellevue
- Cited By
- 19 cases
- Status
- Published