Jones et al v. Washington State et al
Filing
176
ORDER DENYING PLAINTIFFS' MOTIONS TO EXCLUDE AND FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; denying 106 Motion to Exclude; denying 108 Motion for Summary Judgment; granting in part and denying in part 111 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)
1
2
3
4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5
6
7
No.
ALEXANDER N. JONES; KEN JONES;
and JO ANNE JONES,
CV-12-0188-EFS
8
Plaintiffs,
9
v.
10
11
12
13
GRANT COUNTY, WASHINGTON; LEROY C.
ALLISON and BENAYA ALLISON, his
wife; TIM SNEAD and "JANE DOE"
SNEAD, his wife; DEBORAH KAY MOORE
and DOUG MOORE, her husband; and
DOUGLAS G. ANDERSON and KIRSTEN H.
ANDERSON, his wife,
ORDER DENYING PLAINTIFFS’ MOTIONS
TO EXCLUDE AND FOR SUMMARY
JUDGMENT AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
14
Defendants.
15
16
I.
INTRODUCTION
17
This matter comes before the Court on Plaintiffs’ Motion to
18
Exclude Richard Alldredge, ECF No. 106, Plaintiffs’ Motion for Summary
19
Judgment Re: Collateral Estoppel, ECF No. 108, and Defendants’ Motion
20
for Summary Judgment, ECF No. 111.
21
Anne Jones seek to exclude Defendants’ statistician Richard Alldredge
22
and ask the Court give preclusive effect to the Washington Supreme
23
Court decision in State v. ANJ, 225 P.3d 956 (2010).
24
Allison, Tim Snead, Deborah Kay More (the “County Commissioners”),
25
their respective spouses, and Grant County (collectively, the “County
26
Defendants”) seek summary judgment on all of Plaintiffs remaining
ORDER - 1
Plaintiffs Alexander, Ken, and Jo
Defendants Leroy
1
claims.
To date, Defendants Douglas Anderson and Kirsten Anderson
2
have not joined the County Defendants’ motion or filed their own
3
dispositive motion.
4
parties and reserved ruling on the pending motions.
On February 4, 2014, the Court heard from the
The Court, having reviewed the pleadings, legal authority, and
5
6
the arguments of counsel, is fully informed.
7
forth below, the Court denies Plaintiffs’ Motion to Exclude, denies
8
Plaintiffs’ Motion for Summary Judgment, and grants in part and denies
9
in part County Defendants’ Motion for Summary Judgment.
II.
10
11
A.
For the reasons set
BACKGROUND
Factual History1
12
On July 2, 2004, at twelve years of age, Plaintiff Alex Jones --
13
the son of Plaintiffs Ken and Jo Anne Jones -- was charged with First
14
Degree Child Molestation in the Juvenile Division of Grant County
15
Superior Court.2
16
independent contractor, was appointed to represent Alex.
17
had been under contract with Grant County to provide legal defense
18
services in the Juvenile Division of Grant County Superior Court since
19
December 2000.
20
of the Grant County Superior Court to represent minor defendants who
21
could not afford to hire their own attorney.
Grant County public defender Douglas Anderson, an
Mr. Anderson
Pursuant to that contract, he was appointed by judges
22
23
24
25
26
1
In ruling on the motion for summary judgment, the Court has considered the
facts and all reasonable inferences therefrom as contained in the submitted
affidavits, declarations, exhibits, and depositions, in the light most
favorable to the party opposing the motion.
See Leslie v. Grupo ICA, 198
F.3d 1152, 1158 (9th Cir. 1999).
2 Because all three Plaintiffs share a common surname (Jones), to avoid
confusion, the Court refers to Plaintiffs Ken and Jo Anne Jones as Mr. and
Mrs. Jones, respectively, and to Plaintiff Alexander Jones as Alex, which is
the given name he uses in the Complaint. The Court intends no disrespect.
ORDER - 2
The Board of County Commissioners is the primary legislative and
1
2
executive
authority
for
the
county,
with
the
authority
and
3
responsibility to make and enforce all laws within the county.
ECF
4
No. 136.
5
set forth the standards for the delivery of legal services to indigent
6
juveniles.
Grant County passed two Resolutions 92-115-C and 97-29-CC to
7
Mr. Anderson represented Alex throughout the September 15, 2004
8
pretrial conference and entry of a guilty plea to the reduced charge
9
of Second Degree Child Molestation.
After entering a guilty plea on
10
September 22, 2004, Alex hired a new lawyer in November 2004 and
11
within five weeks moved
12
Superior Court denied Alex’s motion to withdraw his plea, he appealed.
13
The Washington Supreme Court in State v. ANJ, 168 Wash.2d 91 (2010)
14
reversed the Superior Court decision finding that Mr. Johnson had
15
rendered deficient assistance by failing to conduct an investigation
16
before proceeding to a guilty plea, and permitted Alex to withdraw his
17
plea
18
misinformation about the impact of a juvenile sex conviction.
19
B.
based
upon
a
to withdraw his guilty
finding
the
plea
was
plea.
After
involuntary
due
the
to
Procedural History
20
Plaintiffs filed this action in Chelan County Superior Court on
21
March 5, 2012, alleging claims against the State of Washington and
22
Governor Christine O. Gregoire (collectively, the “State Defendants”),
23
the County Defendants, and Douglas and Kirsten Anderson, ECF No. 2, at
24
7-21.
The Complaint asserts the following claims for relief:
25
26
ORDER - 3
(a)
1
two claims against all Defendants for declaratory judgment,
2
pursuant to RCW 7.24.010 and 7.24.050 (First and Second
3
Claims);
(b)
4
a claim against all Defendants for violating Mr. Jones's
5
rights
6
Constitution (Third Claim);
(c)
7
one
under
claim
Article
each
I,
against
section
Defendants
22
of
the
Gregoire,
Washington
the
County
8
Commissioners, Douglas Anderson, and Grant County, pursuant
9
to
42
U.S.C.
§
1983,
for
violating
Mr.
Jones’s
Sixth
10
Amendment right to effective assistance of counsel (Fourth,
11
Fifth, Sixth, and Seventh Claims, respectively);
(d)
12
two additional claims against Defendant Douglas Anderson,
13
one for professional negligence (Eighth Claim), and one for
14
breach of fiduciary duty (Ninth Claim);
(e)
15
one claim against Defendants Grant County and the County
16
Commissioners
17
retention (Tenth Claim);
(f)
18
for
negligent
hiring,
supervision,
and
one claim against the County Commissioners and Defendant
19
Douglas
20
conspiracy (Eleventh Claim);
(g)
21
Anderson
for
“concerted
action,”
or
civil
one claim against the spouses of the County Commissioners
for community liability (Twelfth Claim); and
22
(h)
23
one
claim
against
all
Defendants
for
injury
to
child,
pursuant to RCW 4.24.010 (Thirteenth Claim).
24
25
Defendants removed the case to this Court on May 4, 2012.
26
//
ORDER - 4
ECF No. 1.
On June 26, 2012, the State Defendants moved for judgment on the
1
2
pleadings.
ECF No. 17.
3
State Defendants’ motion and dismissed all claims against the State
4
Defendants.
5
Defendants also moved for judgment on the pleadings.
6
October 31, 2012, the Court denied the County Defendants’ motion as to
7
Plaintiffs’ Fifth, Seventh, and Thirteenth Claims, but granted the
8
motion as to Plaintiffs’ First, Second, and Third Claims.
9
Accordingly,
Plaintiffs’
10
dismissed
to
11
Plaintiffs’ First, Second, and Third Claims remained as to Defendants
12
Douglas and Kirsten Anderson.
13
2013, Plaintiffs filed an Amended Complaint, which listed the First,
14
Second,
15
“dismissed per ECF No. 41 & 45.”
16
Complaint also withdrew Plaintiffs’ Eight, Ninth, and Tenth Claims.
17
ECF No. 85 at 13-14.
18
parties’ Notice of To-Be-Adjudicated Claims, remaining before this
19
Court is Plaintiffs’ Fifth, Sixth, Seventh, Eleventh, Twelfth, and
20
Thirteenth Claims.
as
and
ECF Nos. 41 & 45 at 7 n.5.
23
the
Third
First,
County
Claim
as
On July 10, 2012, the County
Second,
and
Defendants.
ECF No. 20.
Third
ECF
No.
“[a]gainst
all
ECF No. 45.
Claims
45.
ECF No. 45 at 11 n.6.
were
However,
On April 8,
defendants”
ECF No. 85 at 10.
On
and
as
The Amended
Based upon the Courts’ previous Orders and the
III. PLAINTIFFS’ MOTION TO EXCLUDE
21
22
On August 8, 2012, the Court granted the
A.
Legal Standard
An
expert
witness
may
testify
at
trial
if
the
expert's
24
“specialized knowledge will assist the trier of fact to understand the
25
evidence or to determine a fact in issue.”
26
witness
ORDER - 5
must
be
“qualified
as
an
expert
Fed. R. Evid. 702.
by
knowledge,
A
skill,
1
experience,
training,
or
education”
and
may
testify
“if
(1)
the
2
testimony is based upon sufficient facts or data, (2) the testimony is
3
the product of reliable principles and methods, and (3) the witness
4
has applied the principles and methods reliably to the facts of the
5
case.”
6
148–49 (1999).
7
testimony or evidence admitted is not only relevant, but reliable.”
8
Daubert
v.
9
(1993).
“Concerning the reliability of non-scientific testimony . . .
Id.; see also Kumho Tire v. Carmichael, 526 U.S. 137, 141,
The “trial judge must ensure that any and all [expert]
Merrell
Dow
Pharmaceuticals,
Inc.,
509
U.S.
579,
589
10
the Daubert factors (peer review, publication, potential error rate,
11
etc.) simply are not applicable to this kind of testimony, whose
12
reliability depends heavily on the knowledge and experience of the
13
expert, rather than the methodology or theory behind it.”
14
v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir.
15
2004) (citations omitted).
16
role
17
experience.
18
has
19
Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996).
20
expert's proposed testimony must be established by a preponderance of
21
the evidence.
22
“If the reviewing court decides the record is sufficient to determine
23
whether expert testimony is relevant and reliable, it may make such
24
findings.
25
trial
26
insufficient to constitute a submissible case[,]’ the reviewing court
under
the
of
In such cases, the Court’s gatekeeping
involves
See id. at 1018.
burden
and
ORDER - 6
Daubert
proving
Hangarter
probing
the
expert's
knowledge
and
“It is the proponent of the expert who
admissibility.”
Lust
v.
Merrell
Dow
Admissibility of the
See Daubert, 509 U.S. at 592 n. 10 (citation omitted).
If it ‘determines that evidence [would be inadmissible] at
that
the
remaining,
properly
admitted
evidence
is
1
may direct entry of judgment as a matter of law.”
2
v. AstenJohnson, Inc., 10-36142, 2014 WL 129884 (9th Cir. Jan. 15,
3
2014) (quoting Weisgram v. Marley Co., 528 U.S. 440, 446–47 (2000))
4
(alternation in original).
5
B.
Analysis
Plaintiffs
6
Estate of Barabin
seek
to
exclude
any
testimony
or
evidence
from
7
Defendants’ expert statistician, Richard Alldredge.
8
offered in response to Plaintiffs’ own expert statistician Mel Ott.
9
Plaintiffs do not challenge Alldredge’s qualifications, nor do they
10
dispute that he relied upon sufficient data and used reliable methods.
11
Both experts, Mr. Ott and Mr. Alldredge used the same data source and
12
the same odds ratio analysis, Chi-Square Test, and Fisher’s Exact
13
Test.
14
grouping of data for inclusion in their odds ratio analyses and the
15
opinions each reached based upon that analysis.
16
that the selecting or grouping of data conducted by Mr. Alldredge
17
render his application in this case unreliable.
The sole distinction between the two experts analysis is the
Here,
18
Mr. Alldredge is
at
the
for why different data sets were compared and its impact upon the
22
expert’s opinion goes to the weight and credibility of those opinions
23
rather than their admissibility.
24
385,
25
regression analyses offered to prove discrimination were unacceptable
26
because
did
not
include
the
all
different
data
uncontested.
21
(Overturning
of
are
reasoning for why certain data sets should be compared.
they
meaning
methodology
20
(1986)
the
statistical
Truly
ORDER - 7
is
and
19
401
issue
data
Plaintiffs assert
points
and
the
The reasoning
See Bazemore v. Friday, 478 U.S.
lower
courts
measurable
finding
variables,
that
the
the
Court
1
stated that “[n]ormally, failure to include variables will affect the
2
analysis’ probativeness, not its admissibility.”).
3
goes to
4
reliability.
5
their respective data sets to compare and the means they place behind
6
those results will aid the jury in better understanding the issues in
7
this case.
8
approach is more credible.
9
is denied.
which
data sets to use, which
Both
11
goes to probativeness
not
The explanation by both experts as to why they choose
Ultimately, it is a question for the jury to decide which
IV.
10
Here, the dispute
parties
Accordingly, Plaintiffs’ Motion to Exclude
MOTIONS FOR SUMMARY JUDGMENT
have
filed
a
motion
for
summary
judgment.
12
Plaintiffs ask that the state court’s decision in State v. ANJ, 225
13
P.3d 956 (2010) be given “collateral estoppel effect” against all
14
Defendants.
15
as to all of Plaintiffs’ remaining claims as to the County and the
16
County Commissioners.
17
A.
ECF No. 108.
The County Defendants seek summary judgment
Legal Standard
18
Summary judgment is appropriate if the “movant shows that there
19
is no genuine dispute as to any material fact and the movant is
20
entitled to judgment as a matter of law.”
21
Once a party has moved for summary judgment, the opposing party must
22
point to specific facts establishing that there is a genuine dispute
23
for trial.
24
the nonmoving party fails to make such a showing for any of the
25
elements essential to its case for which it bears the burden of proof,
26
the trial court should grant the summary judgment motion.
ORDER - 8
Fed. R. Civ. P. 56(a).
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
If
Id. at 322.
1
“When the moving party has carried its burden under Rule [56(a)], its
2
opponent must do more than simply show that there is some metaphysical
3
doubt as to the material facts.
4
forward with ‘specific facts showing that there is a genuine issue for
5
trial.’”
6
574, 586-87 (1986) (internal citation omitted) (emphasis in original).
7
When considering a motion for summary judgment, the Court does not
8
weigh the evidence or assess credibility; instead, “the evidence of
9
the non-movant is to be believed, and all justifiable inferences are
. . . [T]he nonmoving party must come
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
10
to be drawn in his favor.”
11
242, 255 (1986).
12
B.
Anderson v. Liberty Lobby, Inc., 477 U.S.
Plaintiffs’ Motion for Summary Judgment Re: Collateral Estoppel
Plaintiffs seek to have the Washington Supreme Court’s decision
13
14
in
State
v.
ANJ,
15
effect”
16
Plaintiffs seek a ruling that “Doug Anderson rendered ineffective
17
assistance of counsel, and deprived Alex Jones of his rights under the
18
Sixth Amendment” by 1) “failing to adequately investigate the charges
19
against
20
relationship
21
“misinforming Alex Jones regarding the consequences of a guilty plea,”
22
and 4) “failing to ensure that Alex Jones understood the nature of the
23
charges against him,” and that the “public defense contract between
24
Grant
25
ineffective assistance of counsel . . . violations.”
26
2.
against
Alex
County
ORDER - 9
225
all
P.3d
and
(2010)
Defendants.
Jones,”
with
956
Alex
Doug
2)
ECF
“failing
Jones,
Anderson
given
No.
to
108.
establish
independent
was
“collateral
a
of
cause
his
of
estoppel
Specifically,
a
confidential
parents,”
the
3)
foregoing
ECF No. 108 at
1
1.
2
A federal court considering whether to apply issue preclusion
3
based on a prior state court judgment must look to state preclusion
4
law.
5
See also W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519,
6
1525 (9th Cir. 1990) (“[A] federal court must give to a state court
7
judgment the same preclusive effect as would be given that judgment
8
under the law of the state in which the judgment was rendered.”)
9
Accordingly, the Court looks to Washington’s law of issue preclusion.
10
11
12
13
14
15
Collateral Estoppel
McInnes v. California, 943 F.2d 1088, 1092-93 (9th Cir. 1991).
Under Washington law, issue preclusion or collateral estoppel
requires the party seeking preclusion to establish that:
(1) the issue decided in the earlier proceeding was
identical to the issue presented in the later proceeding,
(2) the earlier proceeding ended in a judgment on the
merits, (3) the party against whom collateral estoppel is
asserted was a party to, or in privity with a party to, the
earlier proceeding, and (4) application of collateral
estoppel does not work an injustice on the party against
whom it is applied.
16
Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wn.2d 299, 307
17
(2004).
Collateral estoppel may be applied to preclude only issues
18
that were litigated and finally determined in the earlier proceeding,
19
and the party against whom it is asserted must have had a full and
20
fair opportunity to litigate the issue.
Id. at 306.
“The proponent
21
must provide the reviewing court with a sufficient record of the prior
22
litigation to facilitate such analysis.”
State v. Barnes, 932 P.2d
23
669, 678 (Wash.App. Div. 2 1997) (citing Beagles v. Seattle-First
24
Nat’l Bank, 25 Wash. App. 925, 932 (1995).
“Where it is not clear
25
whether
an
26
ORDER - 10
issue
was
actually
litigated,
or
if
the
judgment
is
1
ambiguous or indefinite, application of collateral estoppel is not
2
proper.”
3
403, 407 (1984).
Id. (citing Mead v. Park Place Properties, 37 Wash. App.
4
2.
Analysis
5
Plaintiffs seek collateral estoppel against two separate groups
6
of Defendants, the County Defendants and the Anderson Defendants.
7
Accordingly, the Court evaluates each group in turn.
a.
8
County Defendants
Plaintiffs
9
seek
collateral
estoppel
claiming
the
issue
of
10
whether the contract was a cause of the ineffective assistance of
11
counsel violations was fully litigated in the Washington State Supreme
12
Court.
13
litigated and finally decided by the Supreme Court.
14
states, “A.N.J. also argues the Grant County public defender contract
15
in
16
investigate their clients’ cases or hire experts.
17
opinion does not state the Court held that the contract between Grant
18
County and Anderson actually caused ineffective assistance.
19
P.3d at 966.
20
“[h]owever, we hold that if a public defender contract requires the
21
defender to pay investigative, expert, and conflict counsel fees out
22
of the defender’s fee, the contract may be considered as evidence of
23
ineffective assistance of counsel.”
24
Accordingly, as to the issue of the contract causing a violation, it
25
is not clear that the issue was fully and fairly litigated below or
26
that it was reached on the merits.
However,
place
ORDER - 11
at
the
it
time
is
not
created
clear
an
that
this
incentive
issue
for
was
directly
While the opinion
attorneys
not
to
We agree,” the
ANJ, 225
To the contrary, the Court limits its holding stating
Id. at 967 (emphasis added).
Accordingly, as the first and
1
second factors work against a finding of collateral estoppel as to the
2
County Defendants, the Court denies Plaintiffs motion as to the County
3
Defendants.
b.
4
5
Anderson Defendants
Anderson was not a party to the state court criminal proceeding
6
and was not a party as the case was appealed.
Accordingly, in order
7
for collateral estoppel to apply, Anderson would have to be in privity
8
with a party.
9
was a witness in the underlying criminal case.
Plaintiffs argue that privity is met because Anderson
Plaintiffs cite to the
10
passage in World Wide Video of Washington, Inc. v. City of Spokane,
11
125 Wash. App. 289, 306 (2005), that “[o]ne who was a witness in an
12
action, fully acquainted with its character and object and interested
13
in its results, is estopped by the judgment as fully as if he had been
14
a party.”
15
subsequent sentence which states, “[i]f this interested witness could
16
have intervened but chose not to for tactical reasons, he or she
17
suffers no injustice from application of collateral estoppel.”
18
(citing Garcia v. Wilson, 820 P.2d 964, 966-67 (1991); Hackler v.
19
Hackler, 37 Wash. App. 791, 795 (1984).
However, Plaintiffs fail to include in their brief the
Id.
20
Here, while Anderson was a witness in the criminal proceeding,
21
testifying to assist his former client to withdraw his guilty plea,
22
there was no opportunity for Anderson to intervene in the action and
23
no evidence of some manipulation or tactical maneuvering on his part.
24
To the contrary, the Washington Supreme Court noted that:
25
26
[W]e do not mean to suggest any particular ethical
violation on [Anderson’s] part.
The record suggests
Anderson believed he acted in the best interest of his
ORDER - 12
client which is evidence by his willingness to sign a
declaration detailing his inadequate performance in support
of A.N.J.’s motion to withdraw his plea.
1
2
3
ANJ, 225 P.3d at 970 n.18.
Accordingly, the Court finds application
4
of collateral estoppel as to the Anderson Defendants would work an
5
injustice upon Defendant Anderson.
For the foregoing reasons, the Court denies Plaintiffs’ Motion
6
7
for Summary Judgment regarding collateral estoppel.
8
C.
Grant County Defendants’ Motion for Summary Judgment
County
9
Defendants
move
for
summary
judgment
asserting
that
10
Monell liability cannot be demonstrated a matter of law, that the
11
Commissioners are entitled to either absolute-legislative immunity or
12
qualified immunity, that the community liability claims have no basis
13
in law, and that the state law derivative claim under RCW 4.24.010
14
does not state a cognizable claim.
15
1.
Community Liability
16
Plaintiffs’ Twelfth Claim asserts community liability against
17
the County Commissioners’ spouses.
18
basis in law.
19
claim as to the spouses of the County Commissioners.
20
n.1.
21
liability,
22
Defendants only.
ECF No. 111.
Defendants argue this claim has no
In response, Plaintiffs withdraw this
ECF No. 125 at 2
Accordingly, the Court grants Defendants’ motion as to community
dismissing
Plaintiffs’
Twelves
Claim
as
to
the
County
23
2.
24
Defendants argue that the County cannot be liable under Section
25
1983 absent proof of a policy or custom that amounts to deliberate
26
ORDER - 13
Grant County
1
indifference to Sixth Amendment rights and a showing that the policy
2
or custom was the moving force behind the claimed violations.
3
Section 1983 imposes two essential proof requirements upon a
4
claimant: (1) that a person acting under color of state law committed
5
the conduct at issue, and (2) that the conduct deprived the claimant
6
of some right, privilege, or immunity protected by the Constitution or
7
laws of the United States.
8
(1981).
9
the
Parratt v. Taylor, 451 U.S. 527, 535
A person deprives another “of a constitutional right, within
meaning
of
section
1983,
if
he
does
an
affirmative
act,
10
participates in another's affirmative acts, or omits to perform an act
11
which he is legally required to do that causes the deprivation of
12
which [the plaintiff complains].”
13
(9th Cir. 1978).
14
and
15
defendant
16
constitutional deprivation.
17
(1976).
18
superior liability.
19
690-92 (1978).
20
position and the claimed constitutional violation must be shown; vague
21
and conclusory allegations are insufficient.
22
607 F.2d 858, 862 (9th Cir. 1979); Ivey v. Bd. of Regents, 673 F.2d
23
266, 268 (9th Cir. 1982).
focus
on
The inquiry into causation must be individualized
the
whose
Johnson v. Duffy, 588 F.2d 740, 743
duties
acts
or
and
responsibilities
omissions
are
alleged
of
to
each
have
individual
caused
a
See Rizzo v. Goode, 423 U.S. 362, 370-71
Liability for a violation will not arise from respondeat
Monell v. Dep’t of Social Servs., 436 U.S. 658,
A causal link between a person holding a supervisory
See Fayle v. Stapley,
24
A government entity may not be held liable under 42 U.S.C. §
25
1983, unless a policy, practice, or custom of the entity can be shown
26
to be a moving force behind a violation of constitutional rights.
ORDER - 14
1
Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658,
2
694 (1978).
3
under
4
possessed a constitutional right of which [s]he was deprived; (2) that
5
the
6
deliberate indifference to the plaintiff's constitutional right; and,
7
(4) that the policy is the moving force behind the constitutional
8
violation.”
9
432,
10
11
In order to establish liability for governmental entities
Monell,
a
municipality
438
plaintiff
had
a
must
policy;
prove
(3)
“(1)
that
that
this
[the
policy
plaintiff]
amounts
to
Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d
(9th
Cir.
1997)
(internal
quotation
marks
and
citation
omitted; alterations in original).
Here, Alex had a constitutional right to effective assistance of
12
counsel,
13
favorably to Plaintiff, the County had a policy of providing indigent
14
defense through the type of contract at issue.
15
parties dispute whether the policy was deliberately indifferent or the
16
moving force behind the violation.
17
and
taking
Deliberate
the
County
indifference
Regulations
occurs
“when
and
the
the
Contract
most
Accordingly, the
need
for
more
or
18
different action ‘is so obvious, and the inadequacy [of the current
19
procedure] so likely to result in the violation of constitutional
20
rights, that the policymakers . . . can reasonably be said to have
21
been deliberately indifferent to the need.’”
22
Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992) (quoting City of
23
Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)).
24
County
Defendants
maintain
that
the
Oviatt By & Through
terms
of
the
contract
25
combined with the fact that these contract terms were not prohibited
26
by the Rules of Professional Conduct until 2008, four years after the
ORDER - 15
1
representation
of
Alex,
2
demonstrate
3
Plaintiffs
4
Commissioners Committee recommendations, the ACLU Report, the WSBA
5
Report, the Seattle Times series, and the Best lawsuit should have
6
alerted
7
effective indigent defense.
8
finds that there is a genuine dispute of material facts as to whether
9
the
deliberate
maintain
the
County
County
was
that
it
is
indifference
that
that
the
its
WDA
impossible
on
the
Standards,
policy
was
for
part
the
Plaintiffs
of
the
Board
inadequate
county.
of
for
to
County
providing
The Court having reviewed this evidence
deliberately
indifferent
to
the
plaintiff's
10
constitutional right or was the moving force behind the violation.
11
Accordingly, this is a matter best left for resolution by the jury.
12
Defendant’s motion as to the County’s liability is denied.
13
3.
14
Defendants argue the County Commissioners are entitled to either
15
absolute immunity or qualified immunity.
a.
16
17
County Commissioners
Defendants
Absolute Immunity
argue
as
they
County
were
Commissioners
engaged
in
are
entitled
legislative
to
18
absolute
19
Legislators “are absolutely immune from liability under § 1983 for
20
their legislative acts.”
21
1219 (9th Cir. 2003).
22
whether an act is legislative, “(1) whether the act involves ad hoc
23
decision making, or the formulation of policy; (2) whether the act
24
applies to a few individuals, or the public at large; (3) whether the
25
act is formally legislative in character; and (4) whether it bears all
26
the hallmarks of traditional legislation.”
ORDER - 16
immunity
the
acts.
Kaahumanu v. County of Maui, 315 F.3d 1215,
There are four factors to apply in deciding
Id. at 1220.
Here, the Court finds this was not a traditional legislative
1
2
act.
While the policies setting forth the standards for the delivery
3
of legal services to indigent juveniles were set forth in two passed
4
resolutions,
5
contract
6
Anderson carried out the policy embodied in the County resolutions but
7
did not formulate a policy, and was in the form of a contract rather
8
than
9
administering
92-115-C
with
an
and
Anderson.
ordinance,
97-29-CC,
The
contract
resolution,
contracts
is
the
or
generally
matter
between
at
issue
is
the
Commissioners
and
legislation.
an
Additionally,
executive
function.
See
10
Community House, Inc. v. City of Boise, 623 F.3d 945, 960 (9th Cir.
11
2010)
12
contract is generally an executive function.”).
13
County
14
therefore do not enjoy the protection of absolute immunity.
(recognizing
that
Commissioners
b.
15
“monitoring
were
not
or
engaged
administering
in
a
a
municipal
Accordingly, the
legislative
act
and
Qualified Immunity
Defendants argue the County Commissioners, in their individual
16
17
capacity,
are
18
qualified immunity protects government officials ‘from liability for
19
civil
20
established
21
person would have known.’”
22
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Staton
23
v. Sims, 134 S.Ct. 3, 5 (2013) (“existing precedent must have placed
24
the statutory or constitutional question beyond debate”).
damages
entitled
insofar
state
or
to
as
qualified
their
immunity.
conduct
constitutional
does
rights
of
“The
not
doctrine
violate
which
a
of
clearly
reasonable
Pearson v. Callahan, 555 U.S. 223, 231
25
Here, in 2000 when the County Commissioners entered into the
26
contract with Anderson that is at issue, and in 2004 when Alex was
ORDER - 17
1
represented
by
Anderson,
2
maintaining such a system of public defense would violate a person’s
3
Sixth Amendment rights.
4
material
5
indifference due to numerous reports and recommendations available to
6
the County, the question of qualified immunity requires the question
7
be beyond debate.
8
1043,
9
deliberate indifference and qualified immunity are separate).
issue
1048-1050
of
it
was
not
clearly
established
that
While, as discussed earlier, there is a
whether
the
County
acted
with
deliberate
See also Estate of Ford v. Ramirez-Palmer, 301 F.3d
(9th
Cir.
2002)
(recognizing
the
inquiry
into
It was
10
not until September 2008 that the Rules of Professional Conduct were
11
amended to prohibit the types of contracts entered into with Anderson.
12
Even in 2010, the Washington Supreme Court specifically refused to
13
hold that such contracts violates a constitutional right, instead only
14
finding
15
ineffective assistance of counsel.”
16
While Plaintiffs cite to the decision in Miranda v. Clark County, 319
17
F.3d 465 (9th Cir. 2003), finding the improper allocation of public
18
defense resources constitutes a deprivation of the Sixth Amendment
19
right to effective assistance of counsel, Miranda does not put the
20
County Commissioners on notice that the constitutional question at
21
issue was beyond debate.
22
to qualified immunity.
23
that
“the
contract
may
be
considered
as
evidence
of
ANJ, 168 Wash. 2d. at 111-112.
Accordingly, the Commissioners are entitled
For the foregoing reasons, Defendants’ motion is granted as to
24
qualified
25
liability.
26
against
immunity
the
ORDER - 18
and
denied
as
to
absolute
immunity
and
Monell
Because Plaintiffs’ Fifth Claim is therefore dismissed
County
Commissioners,
the
related
Eleventh
Claim
for
1
concerted action and the derivative Thirteenth Claim for injury to a
2
child, cannot be maintained.
V.
3
CONCLUSION
4
Based upon the forgoing findings, remaining for trial are 1)
5
Plaintiff’s Sixth, Eleventh, Twelfth, and Thirteenth Claims against
6
the Anderson Defendants, and 2) Plaintiff’s Seventh and Thirteenth
7
Claims against Grant County.
8
Accordingly, IT IS HEREBY ORDERED:
9
1.
Plaintiffs’ Motion to Exclude, ECF No. 106, is DENIED.
10
2.
Plaintiffs’ Motion for Summary Judgment, ECF No. 108, is
DENIED.
11
3.
12
Defendants’ Motion for Summary Judgment, ECF No. 111, is
13
GRANTED IN PART (community liability; qualified immunity)
14
and DENIED IN PART (remainder).
4.
15
Plaintiffs’
Twelfth
Claim
is
as
to
County
Defendants only.
16
5.
17
Plaintiff’s
Fifth,
Eleventh,
and
Thirteenth
Claims
are
dismissed as to the County Commissioners.
18
6.
19
The case caption is to be AMENDED as follows:
ALEXANDER N. JONES; KEN JONES; and JO ANNE JONES,
20
Plaintiffs,
21
v.
22
23
GRANT
24
KIRSTEN H. ANDERSON, his wife,
COUNTY,
WASHINGTON;
Defendants.
25
26
dismissed
//
ORDER - 19
and
DOUGLAS
G.
ANDERSON
and
1
2
3
IT IS SO ORDERED.
The Clerk’s Office is directed to enter this
Order and provide copies to all counsel.
DATED this
27th
day of May 2014.
4
s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Q:\EFS\Civil\2012\0188.msj.deny.lc2.docx
ORDER - 20
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