John Doe 1 v. Washington State Department of Corrections

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JOHN DOE 1, JOHN DOE 2, JANE DOE 1, JANE DOE 2, JANE DOE 3, and all NO. 4:21-CV-5059-TOR persons similarly situated, ORDER ON MISCELLANEOUS 9 Plaintiffs, RELIEF 10 v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, and STEPHEN SINCLAIR, Secretary of the Department of Corrections, in his official capacity, Defendants, and BONNEVILLE INTERNATIONAL INC., a Utah Corporation d.b.a. KIRO RADIO 97.3 FM; and THE MCCLATCHY COMPANY, LLC, a California Limited Liability Company d.b.a. THE TACOMA NEWS TRIBUNE, 19 Interested Parties.

1 BEFORE THE COURT is Interested Party The McClatchy Company, d.b.a.

2 The Tacoma News Tribune’s Opposition to Plaintiffs’ Motions for Preliminary Injunction and Class Certification; and Motion to Dismiss or Transfer and for Continuance of Plaintiffs’ Motions and for Award of Fees and Costs (ECF No. 42).

5 This matter was submitted for consideration and discussed during telephonic oral argument on May 12, 2021. Katherine M. Forster, Ethan D. Frenchman, Heather L. McKimmie, Lisa Nowlin, Nancy L. Talner, Danny Waxwing, and Joseph R. Shaeffer appeared on behalf of Plaintiffs. Candie M. Dibble appeared on behalf of Defendants. Michele L. Earl-Hubbard appeared on behalf of Interested Party The McClatchy Company, d.b.a. The Tacoma News Tribune. Candice Jackson appeared on behalf of Interested Party Andrea Kelly. The Court has reviewed the record and files herein, considered all the parties’ oral arguments and subsequent briefing, and is fully informed. For the reasons set forth below, The McClatchy Company, d.b.a. The Tacoma News Tribune’s Motion is DENIED.

15 BACKGROUND 16 On March 12, 2021, a reporter from The McClatchy Company, d.b.a. The Tacoma News Tribune (“News Tribune”) made a records request to the Washington Department of Corrections (“DOC”). ECF No. 42 at 2. On April 7, 2021, Plaintiffs filed a Complaint seeking declaratory and injunctive relief pertaining to DOC’s plans to release records requested by News Tribune and other Interested Parties. ECF No. 1. DOC and Stephen Sinclair, the Secretary of the DOC, were the only named Defendants in the Complaint; News Tribune and two other entities were identified as Interested Parties. Id. 4 Plaintiffs then filed a motion for temporary restraining order on April 8, 2021. ECF No. 6. That same day, Plaintiffs emailed News Tribune and the other Interested Parties the documents filed in the case and inquired whether the parties would be willing to accept service. ECF No. 66 at 2. Counsel for News Tribune indicated News Tribune would only accept service through its registered agent. Id. Plaintiffs served hard copies to News Tribune’s registered agent on April 12, 2021.

10 Id. 11 News Tribune filed the present opposition and motion on April 23, 2021.

12 ECF No. 42. At the time, Plaintiffs’ Motion for Preliminary Injunction was scheduled for oral argument on May 12, 2021. ECF No. 7. News Tribune noted its motion for hearing without oral argument on May 24, 2021; it did not seek expedited review. ECF No. 42. Nonetheless, the Court permitted News Tribune’s appearance at the preliminary injunction hearing and heard its oral arguments on the present motion. ECF No. 64.

18 News Tribune’s pleading opposes Plaintiffs’ Motions for Preliminary Injunction and Class Certification, which the Court granted on May 17, 2021. ECF Nos. 69, 70. The present motion also seeks dismissal or transfer for lack of subject matter jurisdiction, or in the alternative, a continuance of Plaintiffs’ motions, and a request for costs and fees. ECF No. 42. Defendant DOC does not oppose News Tribune’s motion. ECF No. 65. Plaintiffs oppose the motion on the grounds that, inter alia, News Tribune lacks standing. ECF No. 66 at 3.

5 DISCUSSION 6 News Tribune is not a named party in this case, nor has it moved to intervene. Therefore, News Tribune lacks standing to bring the present motions.

8 Article III, § 2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64, 10 (1997). Standing to sue or defend is an aspect of the case-or-controversy requirement. Id. (citing Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663–664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal)). To qualify as a party with standing to litigate, a person must show, first and foremost, “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”

17 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). “An interest shared generally with the public at large in the proper application of the Constitution and laws will not do.” Arizonans for Off. Eng., 520 U.S. at 64 (citations omitted).

20 Here, News Tribune cannot meet the threshold issue of injury in fact because it has not identified a legally protected interest. Throughout its motion, News Tribune refers broadly to “the requestors’ rights to receive public records under the PRA.” See, e.g., ECF No. 42 at 4; at 8. Beyond this general interest, News Tribune fails to identify a specific right that is actually or imminently under threat of invasion. Indeed, News Tribune itself seems unclear what rights it has to be heard in the present lawsuit. See ECF No. 42 at 8 (claiming that service upon News Tribune as “interested party” made it unclear what rights it had to be heard or to participate in the litigation). The injury in fact inquiry requires a party to demonstrate they are “among the injured.” Lujan, 504 U.S. at 563 (citation omitted). News Tribune’s claims are more akin to “an interest shared generally with the public at large,” which is insufficient to establish injury in fact. Arizonans for Off. Eng., 520 U.S. at 64 (citations omitted).

13 News Tribune’s remaining arguments relate to various claims for procedural relief. See generally ECF No. 42. Because News Tribune has not established how the right to receive public records is concrete and particular to itself or how those rights are under threat of actual or imminent invasion, the Court finds News Tribune lacks standing to bring the present motions. Therefore, the Court cannot reach the motion’s substantive issues.

19 // // 1]; ACCORDINGLY, IT IS HEREBY ORDERED: 2 News Tribune’s Opposition to Plaintiffs’ Motions for Preliminary Injunction 3}| and Class Certification; Motion to Dismiss or Transfer; Motion for Continuance of Plaintiffs’ Motions; and Motion for Award of Fees and Costs (ECF No. 42), is 5}| DENIED.

6 The Clerk of Court is directed to terminate The McClatchy Company, d.b.a.

7\| The Tacoma News Tribune as an Interested Party in the docket of this case.

8 The District Court Executive is directed to enter this Order and furnish copies to all counsel of record.

10 DATED June 1, 2021.

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