HomeMy WebLinkAboutJoe D'Amico Acceptance of Defendant's Offer of Judgment 20201
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FILED
CLALLAM COUNTY
AUG 2 4
NXKi BOTNEN CLERK
SUPERIOR COURT OF WASHINGTON
FOR CLALLAM COUNTY
JOSEPH N. D'AMICO, No. 18-2-00584-05
Plaintiff,
vs.
JEFFERSON COUNTY, a Washingto
municipality,
Defendant.
Lorecki Case")'
PLAINTIFF'S ACCEPTANCE OF
DEFENDANT'S OFFER OF
JUDGMENT UNDER CR 68
Plaintiff accepts Defendant's Offer of Judgment dated August 18, 2020 (and filed
on August 24, 2020).
RESPECTFULLY SUBMITTED this 24th day of August, 2020.
By: ONA OW
Greg Overs t, WSBA No. 26682
General Counsel
Security Services Northwest, Inc.
Michele Earl -Hubbard, WSBA No. 26454
Allied Law Group
Attorneys for Plaintiffs
There is more than one PRA case in this Court captioned "D'Amico v. Jefferson County." Therefore, D'Amico
is adding a shorthand name for each of the PRA cases to the caption to distinguish the cases at a glance.
SECURITY SERVICFS NORTIMrST, INC.
PLAINTIFF'S ACCEPTANCE OF 250 Center Park Way
DEFENDANT'S OFFER OF .IUDGMENT Sequim, WA 98382
800) 85'9-3463UNDERCRG!I - 1
grcgrissnwhq.com
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CERTIFICATE OF SERVICE
1, Greg Overstreet, certify that on August 24, 2020, I emailed a copy of Plaintiff's
Notice of Acceptance of Defendant's Offer ofJudgment Under CR 68 to Phillip
Hunsucker, Chief Civil Deputy Prosecuting Attorney for Jefferson County at his email
address, PHunsuckeruca jefferson.wa.us.
PLAINTIFF'S ACCEPTANCE OF
Dr-TE'NDANT'S OFFER OF JUDGMENT
UNDER CR 68 - 2
6r-P-4,r pmkx-+
Greg Ov street, W, BA No, 26682
SECURITY SERVICES NORTHWEST, INC.
250 Center Park Way
Sequim, WA 98382
800) 859-3463
greg@ssnwhq.com
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2s
FILED
CLALLAIM COUNTY
2i
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR CLALLAM COUNTY
JOSEPII N. D'AMICO,
Case No.: 18-2-00584-05
Plaintiff,
VS. COUNTY'S OFFER OF JUDGMENT
UNDER CR 68
JEFFERSON COUNTY, a Washin
municipality,
Defendant.
1. OFFER OF JUDGMENT
TO: Plaintiff Joseph N. D'Amico and his Attorneys:
Defendant Jefferson County {the County} offers to allow judgment to be entered against
it in this matter for the amount of $187,356,00. This offer ofjudgment and its amount includes
all costs accrued to date as provided in RCW 42.56.550(4), including attorney's fees. This offer
shall remain open for I I days after service.
The County's reasons for making this offer ofjudgment are summarized in Section 111,
below.
1I. CR 68 APPLIES IN PUBLIC RECORDS ACT CASES
RCW 42.56.550(4) states: "Any person who prevails against an agency in any action in
the courts seeking the right to inspect or copy any public record or the right to receive a response
to a public record request within a reasonable amount of time shall be awarded all costs,
including reasonable attorney fees, incurred in connection with such legal action. In addition, it
shall be within the discretion of the court to award such person an amount not to exceed one
COUNTY`S OFFER OF JUDGMENT PURSUANT TO
C'R68-1 Jefferson County Prosecuting Attorney
r` 1820 MYerson Street/P.0. Box 1220
Port Townsend. WA 98368
c ^ 360-385-9180
l4rl rti,
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hundred dollars for each day that he or she was denied the right to inspect or copy said public
record." (Emphasis added). CR 68 applies in Public Records Act (PRA) cases. Rufrn V. City of
Seattle, 199 Wn. App. 348, 363, 398 P.3d 1237, 1246 (2017).
11111. COUNTY'S EXPLANATION FOR ITS OFFER OF JUDGMENT
This PRA case has been pending since June 21, 2018. The case is based on errors made
by employees of the County in responding to a public records request that the requestor made on
February 15, 2017, with a completed response on June 21, 2017. Though the case has been
pending for two years, it is still at the initial pleading stage.
The County concedes there were violations of the PRA, Chapter 42.56 RCW, that entitle
Plaintiff to an award ofreasonable attorney's fees and costs.
A. The County Disagrees with the Methods Use by Plaintiff to Calculate a
Penalty
As to penalties, the County disagrees that Plaintiff is entitled to a daily penalty based on
PRA violations. The language of RCW i .. is to the contrary. Furthermore, caselaw
makes clear that the PRA does not provide a freestanding penalty for procedural violations. John
Doe v. Benton Cty., 200 Wn. App. 781, 791, 403 P.3d 861, 866 (2017); Hikel v. CityofLynmvood,
197 Wn. App. 366, 379, 389 P.3d 677, 684 (2016). Penalties are authorized only for withheld
records. Nevertheless, Plaintiff seeks a "a daily penalty of $100 per day for each of the 2,359
violations for every day the records were withheld." Amended Complaint, $ VI (Request for
Relief), ¶ 8 (emphasis added). The County recognizes that PRA violations may be an aggravating
factor for a penalty for wrongfully withholding a record. Sanders v. State, 169 Wn.2d 827, 860-
61, 240 P.3d 120, 137 (2010); Hikel v. City ofLynnwood, 197 Wn. App, 366, 379, 389 P.3d 677,
684 (2016). But claiming violations as the source of penalties is contrary to the law.
In addition, Plaintiff has used other devices to inflate the claimed penalty by:
Counting multiple "violations" for the same redaction. See Plaintiff's counsel's
June 21, 2018 declaration, 1114 ("Often there are numerous violations for each
Challenged Withholding."),
CO11N3'Y'S OFFER OF JUDGMENT PURSUANT TO
CR68-2 Jefferson County Prusecuting Attorney
t 1820 Jefferson Stree&.O. Hux 1220
Port Townsend, WA 98368
360-385-9180
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Counting multiple "challenged withholdings" on a page. Table of PRA
Violations, Exhibit B to Plaintiffs counsel's June 21, 2018 declaration. For good
visual example, look at the redactions on a timeline at pages 33-34 of Exhibit A
to Plaintiff's counsel's June 21, 2018 declaration, where Plaintiff claims 24
challenged withholdings" for redactions on one record that is 2 pages long. This
has the effect of multiplying the potential penalty by 12 times based on the number
of pages and 24 times based for the whole record, if the entire record had been
withheld. Exhibit A to Plaintiff's counsel's June 21, 2018 declaration contains
115 pages with redactions, but counts 4'2,353 violations summarized in the Table
of Violations." Plaintiffs counsel's June 21, 2018 declaration, ¶ 15.
Counting multiple "challenged withholdings" for the same information. For
example, Mr. Lorecki's date of birth and social security number were redacted on
multiple records, but Plaintiff counts each redaction as a "challenged
withholding."
The County has other defenses to a penalty award and costs that it will litigate, if
necessary.
B. The County's Size and Financial Status Must Be Considered as Part of the
Court's Penalty Factors Analysis.
To accomplish the PRA's purpose, "the penalty must be an adequate incentive to induce
future compliance." Zink v. City ofMesa, 4 Wn. App.2d 112, 126,419 P.3d 847, 855 (2018), as
amended (June 19, 2018), review denied, 192 Wn.2d 1004, 430 P,3d 251 (2018) (Zink), An
agency's smallness and limited resources matter. Zink, 4 Wn. App.2d at 126, 419 P.3d at 854;
Yousoufian v. UfJice ofRon Sims, 168 Wn.2d 444, 463, 229 P.3d 735, 745 (2010)("Yousoufian
2010"). "The penalty needed to deter a small school district and that necessary to deter a Iarge
county may not be the same."), The Washington Supreme Court's holding that the Yousoufian
2010 factors "may not apply equally or at all in every case," 168 Wn.2d at 468, 229 P.3d 735,
authorizes a trial court in an appropriate case to attribute more weight to the ninth aggravating
factor (a penalty amount necessary to deter future misconduct by the agency considering the size
COUNTY'S OFFER OF JUDGMENT PURSUANT TO
CR68-3 Jefferson County Prosecuting Attorney
1820 JelTerson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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of the agency and the Cacts of the case), which does take deterrence and the size of the agency
into consideration. Zink, 4 Wn. App.2d at 129, 419 P.3d at 856.
A search of Washington cases reveals that most penalty awards against jurisdictions in
PRA cases rarely exceed more than a few dollars per resident on a per capita basis. E.g.,
Youcoufan 2010, 168 Wn.2d at 470, 229 P.3d 735 (awarding $371,340.00, which amounts to
approximately $0,19 per resident); Cedar Grove Composting, Inc, v. City ofMarysville, 188 Wn,
App. 695, 707, 354 P.3d 249 (2015) (awarding S143,740.00, which equals approximately S2.39
per resident)." Zink, 4 Wn. App.2d at 128, 419 P.3d at 855,
In 2019, the Washington Supreme Court approved a penalty on a per capita basis for
Kittitas County and cited Zink with approval:
The $15,498.00 penalty "amounted to an assessment of almost $0.34 per KittitasCountyresidentonapercapitabasis," which "is commensurate with other PRA
violation assessments." Id. at 500, 422 P.3d 466. " [P]enalty awards against
jurisdictions in PRA cases rarely exceed more than a few dollars per resident." Zink v. City of Mesa, 4 Wash. App, 2d 112, 128, 419 P.3d 847, review denied,
192 Wn.2d 1004, 43011.3d 251 (2018). And even the award in Yousou ion 11—
whose facts were far more egregious than here, involving "years of delay and
misrepresentation on the part of the county" —only amounted to $0.19 perresident.
Hoffman v. Kittitas Cry., 194 Wn.2d 217, 232, 449 P.3d 277,285 (2019) (Hoffman).
Jefferson County has a population of 32,221. t Applying these cases, there would be a
maximum penalty of:
6,121.99 ($0.19 per resident) under Yousoulian 2010.
16,111.05 ($0.34 per resident) under Hoffman.
75,397.14 ($2.34 per resident) under Cedar Grove Composting.
76, 981 ($2.39 per resident) under Zink.
As a small rural and economically distressed county, Jefferson County's budgetary
constraints are significant; especially considering the financial impacts ofthe COVID-19
pandemic. Jefferson County cannot withstand a penalty of millions of dollars without reducing
the services Jefferson County provides to residents. Even awards at the levels based on the prior
Imp, ;y r, u_,u,, ,ti ,i;i,t,,i._jcPV1N,II< wltn.10111,0-1,last accessedonApril 28,2020. COUNTY'S OFFFR OF JUDGMENT PURSUANT TO t
Jefferson C auntyProsecuting Attorney CR68 - 4 . - 1820 Jefferson Strewl),o. Box 1220 cPort
Townsend, WA 98368 360-
385-9189
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awards confirmed by the Washington Supreme Court in Cedar Grave Composting, Hoffman,
Yousoufran 2010, and Zinkwould significantly impact the County's ability to respond to the
pandemic and weather its economic recession without cutting important public services.
C. The County Recognizes Attorney's Fees Have Been Incurred and Litigation
Risk Exists.
The penalty awards in Cedar Grave Composting, Hoffman, Yousouftan 2010, and Zink
obviously were much less than the amount of this offer ofjudgment, but this offer ofjudgment
also includes costs and attorney's fees. And, the County also understands there is litigation risk,
including the risk in the amount of the award of costs, including continued accumulation of
claimed attorney's fees, under RCW 42.56.550(4), which the County hopes to curtail through
this offer ofjudgment.
COUNTY'S OFFER OF JUDGW NT PURSUANT TO
CRGB-5
JEFFERSON COUNTY PROSECUTING
AT I'ORNEY'S OFFICE
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
Attorneys for Jefferson County, WA
Jefferson County Prosecuting Aitomey
1820 Jefferson Streetll'.O, 13ox 1220
Part Townsend, WA 98368
r-^ 360-385-9180
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CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of August 2020, 1 caused to be served the foregoing
COUNTY'S OFFER OF JUDGMENT UNDER CR 68 on Behalf ofDefendant Jefferson County,
Washington on the following party at the following address:
Greg Overstreet,
Security Services Northwest, Inc.
P.O. Box 600
Port Townsend, WA 98368
Email: greg@ssnwhq.com
Michele Earl -Hubbard
Allied Law Group LLC
6100 219th St. SW, Suite 480
Mountlake Terrace, WA 98043
Attorneys fvr Plaintiff Joseph N. D Amico
By: Email per agreement ofthe parties to grc: r%_,. lLm iq-Lom and i ichrlr'u_aUirflaw lc up.com.
PROSECUTING ATTORNEY FOR
JEFFERSON COUNTY
CERTIFICATE OF S1 RVICF - 1
By: 0
Philip C. Hunsucker, WSBA 948692
Chief Civil Deputy Prosecuting Attorney
Attorneys for Jefferson County, WA
t Jefferson County Prosecuting Attorney
1820 Jefferson Street/P,o, Box 1220
Port'fownsend, WA 48368
360-385-9180
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CERTIFICATE OF SERVICE
1, Greg Overstreet, certify that on August 24, 2020, I emailed a file -stamped copy
of County's Offer of Judgment Under CR 68 to Phillip Hunsucker, Chief Civil Deputy
Prosecuting Attorney for Jefferson County at his email address,
PHunsucker(cv` cojefferson.wa.us.
Greg IhIf-SIreet, WSBANo...
Leslie Locke
From: Philip Hunsucker
Sent: Thursday, September 10, 2020 2:57 PM
To: Leslie Locke
Subject: D'Amico Settlement (Lorecki)
Attachments: 2020 08 24 Notice of Acceptance of Offer of Judgment.pdf, 2020 08 24 Offer of
Judgment.pdf
Leslie
These two documents, together, constitute the entire settlement.
Philip
Philip C. Hunsucker
Chief Civil Deputy Prosecuting Attorney
Jefferson County Prosecuting Attorney's Office
P.O. Box 1220, Port Townsend, WA 98368
Ph: 360-385-9219 (direct) Fax: 360-385-0073
All e-mail sent to this address has been received by the Jefferson County e-mail system and is therefore subject to the Public Records Act, a state law
found at RCW 42.56. Under the Public Records law the County must release this e-mail and its contents to any person who asks to obtain a copy (or for
inspection) of this e-mail unless it is also exempt from production to the requester according to state law, including RCW 42.56 and other state laws.
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