Gullen v. Pierce County
Concurring Opinion
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68535-5
Title of Case: Ignacio Guillen
v.
Pierce County
File Date: 09/13/2001
Oral Argument Date: 11/16/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Pierce County;
96-2-13404-5
Honorable Frederick B. Hayes, Judge.
JUSTICES
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Authored by Bobbe J. Bridge
Concurring: Charles Z. Smith
Richard B. Sanders
Faith E Ireland
Richard P. Guy
Barbara A. Madsen
Gerry L. Alexander
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Daniel R. Hamilton
Deputy Pros Atny
955 Tacoma Ave S Ste 301
Tacoma, WA 98402
Susan P. Jensen
Pierce Co Prosecuting Aty
955 Tacoma Ave S Ste 301
Tacoma, WA 98402-2160
Counsel for Respondent(s)
Salvador A. Mungia Ii
Gordon Thomas Honeywell etal
PO Box 1157
Tacoma, WA 98401
Juliana K. Burnett
King Co Pros Office
PO Box 883
Bellevue, WA 98009
Darrell L. Cochran
Gordon Thomas Honeywell Malanca Peterson & Daheim
PO Box 1157
Tacoma, WA 98401-1157
David K. Dewolf
Casey Gore & Grewe
Rock Pointe Tower
Suite 880 316 W. Boone
Spokane, WA 99201
Amicus Curiae on behalf of Wa State Assn of Municipal Attorneys
William L. Cameron
Luce Lombino & Riggio
4505 Pacific Hwy E Ste a
Tacoma, WA 98424-2638
Amicus Curiae on behalf of Washington Association of Prosecutin
E B. Potter
Clark Co. Prosc. Atty Ofc
P.O. Box 5000
Vancouver, WA 98668
Amicus Curiae on behalf of State of Washington
William L. Williams
Senior Asst. Attorney General
PO Box 40100
Olympia, WA 98504-0100
Michael E. Tardif
Asst Atty Gen - Dl&i
PO Box 40126
Olympia, WA 98504-0126
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Gary N. Bloom
Harbaugh & Bloom
P.O. Box 1461
Spokane, WA 99210
Debra L. Stephens
6210 E Lincoln Ln
Spokane, WA 99207-9220
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
Counsel for Other Parties
Harold T. Dodge Jr.
Rush Hannula Harkins & Kyler
715 Tacoma Ave. S.
Tacoma, WA 98402
Garth L. Jones
Stritmatter Kessler Whelan Withey Coluccio
413 8th St
Hoquiam, WA 98550
Thomas J. West
Krilich La Porte West & Lockner PS
524 Tacoma Ave. So.
Tacoma, WA 98402-5416
Timothy Malarchick
Attorney At Law
Ste 310
4423 Point Fosdick Dr
Gig Harbor, WA 98335
Jeffrey F. Hale
Johnson Graffe Keay & Moniz (email Address Jeffh@jgkm.COM)
Ste 101
2115 N 30th St
Tacoma, WA 98403-3318
Philip I. Brennan Jr
Krilich La Porte West & Lockner
524 Tacoma Ave S
Tacoma, WA 98402-5416
Richard H. Benedetti
Davies Pearson Pc
920 Fawcett Avenue
P.O. Box 1657
Tacoma, WA 98402
Keith L. Kessler
Stritmatter Kessler Whelan Withey Coluccio
413 8th St
Hoquiam, WA 98550
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Guillen, et al. v. Pierce County, et al.
Majority by Bridge, J.
Concurrence by Madsen, J.
No. 68535-5
MADSEN, J. (concurring)--Privileges are the exception, not the rule,
and therefore, they are 'not lightly created nor expansively construed, for
they are in derogation of the search for the truth.' United States v.
Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). Today
our court sidesteps this admonition and construes 23 U.S.C. sec. 409 in a
sweeping manner, far beyond that intended and, most importantly, dictated
by Congress. While I concur in the result of the majority, I do so only
because the majority, not entirely comfortable with its own result,
determined that its own interpretation of sec. 409 exceeds Congress'
authority under the Tenth Amendment, and therefore, refused to enforce its
own expansive interpretation.
In 1973, Congress enacted 23 U.S.C. sec. 152, which establishes a voluntary
national funding program for enhancement of dangerous roadways, requiring
states to identify hazardous locations and prioritize them for correction.
23 U.S.C. sec. 152. To thwart an unintended and unsavory result of sec.
152--that private plaintiffs might gain a work free 'tool' to use in civil
litigation--Congress enacted 23 U.S.C. sec. 409, which lies at the heart of
this dispute. See Coniker v. State, 695 N.Y.S.2d 492, 181 Misc. 2d (Ct.
Cl. 1999).
Section 409 currently reads:
Notwithstanding any other provision of law, reports, surveys, schedules,
lists, or data compiled or collected for the purpose of identifying
evaluating, or planning the safety enhancement of potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to
sections 130, 144, and 152 of this title or for the purpose of developing
any highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be subject to
discovery or admitted into evidence in a Federal or State court proceeding
or considered for other purposes in any action for damages arising from any
occurrence at a location mentioned or addressed in such reports, surveys,
schedules, lists, or data.
23 U.S.C. sec. 409 (emphasis added). In 1995, Congress added the term
'collected' to sec. 409, thus making inadmissible in court, those materials
'compiled or collected' for purposes of sec. 152. Congress was clear in
its intent regarding this amendment:
This section amends section 409 of title 23 to clarify that data
'collected' for safety reports or surveys shall not be subject to discovery
or admitted into evidence in Federal or State court proceedings.
This clarification is included in response to recent State court
interpretations of the term 'data compiled' in the current section 409 of
title 23. It is intended that raw data collected prior to being made part
of any formal or bound report shall not be subject to discovery or admitted
into evidence in a Federal or State court proceeding or considered for
other purposes in any action for damages arising from any occurrence at a
location mention{ed} or addressed in such data.
H.R. Rep. 104-246 sec. 328, at 59 (1995).
I agree with the majority that this amendment was intended to make a
'change' in sec. 409. Majority at 22; See Home Indem. Co. v. McClellan
Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969). However, I disagree with
the majority as to the import of that change. Under the majority's
holding, original police reports prepared for purposes unrelated to sec.
152, become privileged, even in the hands of the party that created them,
once they have been 'collected' by any entity for purposes of sec. 152.
Majority at 22. Contrary to the majority's assertions, this was not the
result intended by Congress, nor is it a holding dictated by any decisional
law.
This point is easily shown by examining: (1) the well settled purpose
behind sec. 409; (2) how state courts partially undermined that purpose
prior the 1995 amendment; (3) how the 1995 amendment can be logically read
to bring the interpretation of sec. 409 back in line with its purpose; and
(4) what state courts have done since the amendment.
The purpose of sec. 409 is clear:
The manifest Congressional intent in enacting 23 U.S.C. sec. 409 was to
'foster the free flow of safety-related information by precluding the
possibility that such information later would be admissible in civil suits.
The interest to be served by such legislation is to obtain information with
regard to the safety of roadways free from the fear of future tort actions'
(Perkins v. Ohio Dept. of Transportation, 65 Ohio App.3d 487, 500, 584
N.E.2d 794, 802; see also Palacios v. Louisiana and Delta RR, 740 So.2d 95;
Reichert v. State of Louisiana, 694 So.2d 193). The statute has the dual
effect of (1) facilitating candor in the evaluation of highway safety
hazards, and (2) prohibiting federally required record keeping from being
used as a tool by civil litigants (see, Robertson v. Union Pacific RR Co.,
954 F.2d 1433 (8th Cir.1992); Stephens v. Town of Jonesboro, 642 So.2d
274).
Coniker, 695 N.Y.S.2d at 494-95. This is distilled into one basic and
obvious rule: Congress did not want to create a 'virtually no-work, tool
for direct use in private litigation,' Light v. State, 560 N.Y.S.2d 962,
965, 149 Misc. 2d 75 (Ct. Cl. 1990). In essence, Congress did not want any
party involved in litigation to be better off, or for that matter worse
off, by reason of a State's participation in seeking sec. 152 funding.
State courts began to undermine this purpose by giving sec. 409 an
unduly narrow construction. An examination of one of the leading state
court opinions on the proper scope of section 409 during the period
preceding the 1995 amendment shows the limited construction of sec. 409
that Congress was aiming to overturn by its amendment. Wiedeman v. Dixie
Elec. Membership Corp., 627 So. 2d 170 (La. 1993), cert. denied, 511 U.S.
1127 (1994), concerned a plaintiff's discovery requests to the State
Department of Transportation and Development (DOTD). Plaintiffs sought
information, such as accident reports, traffic counts, and other raw data
collected by the department that was gathered by the DOTD in preparing its
applications for federal funding. Id. Plaintiffs also sought surveys,
compilations, and the actual applications for federal funding.
The Louisiana Supreme Court held that the raw data and reports gathered by
the DOTD, which were later incorporated into a report, were not privileged
by reason of sec. 409:
DOTD argues for an even more expansive interpretation that would protect
data and raw facts as well as the written documents incorporating the data.
DOTD essentially asks this Court to transform a statute, which by its
literal wording protects information compiled for certain purposes, into
one which protects all information in DOTD's possession. We refuse. The
word "compiled" indicates that information is collected into one document
or composed from other sources. {See Webster's New Collegiate Dictionary
p. 230, (1977).} The term suggests an end product, something more than
unedited factual material. Section 409 creates a privilege for
compilations enumerated in the statute, but the privilege does not extend
to reports and data gathered for or incorporated into such compilations.
. . . . A rule which requires DOTD to divulge source data but not the end
product fosters candor by shielding the state's self-critical evaluations
and conclusions from outside scrutiny. It also accords with Louisiana's
strong interest in fully and fairly adjudicating matters before its courts
and the concomitant need to facilitate open and evenhanded development of
the facts underlying a dispute.
Wiedeman, 627 So. 2d at 173 (emphasis added). Other state courts construed
section 409 in a similar fashion during this period. See Tardy v. Norfolk
S. Corp., 103 Ohio App. 3d 372, 659 N.E.2d 817 (1995); S. Pac. Transp. Co.
v. Yarnell, 181 Ariz. 316, 890 P.2d 611, cert. denied, 516 U.S. 937 (1995).
In Wiedeman, and other similar cases, plaintiffs were attempting to
gain information that was 'collected' by an agency for purposes of
preparing an application for federal funding from the agency that
'collected' the information. In none of these cases were plaintiffs
seeking information or reports from their original source, such as accident
reports from a law enforcement agency. This is a critical distinction, and
one that is unnecessarily dismissed as inconsequential by the majority. As
illustrated below, it is a distinction that makes sense.
When Congress amended sec. 409 to include within its scope information that
was 'collected' it was reacting to decisions like Wiedeman. Congress
simply 'intended that raw data collected prior to being made part of any
formal or bound report shall not be subject to discovery or admitted into
evidence.' H.R. Rep. 104-246 sec. 328 (emphasis added). However, this did
not obviate the express statutory requirement that the raw data and
information be 'collected' pursuant to sec. 152.
An example illustrates this point, and the flaw in the majority's analysis.
Take the simple case of a Pierce County Sheriff's Department officer
completing a written accident report for a valid law enforcement purpose
(e.g., documenting why a citation was given or an arrest made), a duty
regularly performed long before 1973, the year sec. 152 was originally
enacted. Pub. L. 100-17, Title I, section 132(a) (Apr. 2, 1987) 101 Stat.
170; see RCW 46.52.060 and accompanying historical information. This
report, and others like it, might contain myriad relevant information for a
plaintiff pursuing a negligent traffic design claim against the government.
Now, let us assume that these reports are kept on microfiche, and several
years later the Pierce County Engineer's Office begins 'collecting' copies
of these reports, but does not make them 'part of any formal or bound
report.' See H.R. Rep. 104-246 sec. 328. Under section 409, as amended, a
plaintiff would not be entitled to have access to the actual documents
'collected' by the Pierce County Engineer's Office. Indeed, this would
provide a 'virtually no-work, tool for direct use in private litigation,'
Light, 560 N.Y.S.2d at 965, as a litigant would be able to obtain a
collection of reports that is part of a work in progress. However, to say
that a litigant would not have access to the original reports, still
contained on microfiche, from Pierce County is an entirely different
matter.
By preventing a litigant from gaining access to information that has been
'collected' for purposes of securing federal funding, Congress has made the
litigant no better off than they would have been had the State not
participated in the funding program, which is the obvious goal of sec. 409.
However, if, as the majority suggests, Congress has prevented a litigant
from having access to original reports from their original sources,
prepared for purposes unrelated to securing federal funding, then a
litigant would be in a far worse position than if the State did not
participate in the funding program. I do not believe that was the result
intended by Congress, nor do I believe it is dictated by the language of
sec. 409.
No post-1995 amendment case involves the discovery of original 7reports
from the agency creating them for purposes unrelated to the securing of
federal funding. Instead, each involves an attempt to gather information
already collected or prepared by a state agency, from the agency that
'collected' the information for the purpose of securing sec. 152 funds.
See, e.g., Reichert v. Dep't. of Transp. & Dev., 694 So. 2d 193 (La. 1997)
(discovery request to DOTD for documents collected by DOTD); Mackie v.
Grand Trunk W. R.R., 215 Mich. App. 20, 544 N.W.2d 709 (1996) (involving
'Grade Crossing Report' compiled by Michigan Department of Transportation;
decided under pre-amended version of section 409). Not surprisingly, in
each instance courts have reached the conclusion that the 'collected'
information is privileged:
On November 28, 1995 section 409 was amended to include the words "or
collected" after "compiled" to effectively eliminate the admissibility of
"{a}ccident reports, traffic counts, and other raw data collected by the
Department" allowed by the holding in Wiedeman. Id. This clarification was
added in response to recent State court decisions, like Wiedeman, that in
the view of Congress, misinterpreted the term "data compiled." . . . In
other words, such information is collected or compiled to protect the
public by ensuring that safety measures are routinely explored by DOTD
without exposing their efforts.
Reichert, 694 So. 2d at 198 (emphasis added).
A narrow construction of sec. 409 is also supported by several rules
of statutory interpretation. The first is that there is a strong
presumption against federal preemption, requiring a showing that this is
'the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947). Second,
privileges are to be narrowly construed, as they stand in 'derogation of
the search for truth.' Nixon, 418 U.S. at 710; see Trammel v. United
States, 445 U.S. 40, 51, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980).
Finally, this Court should be mindful that 'where a statute is susceptible
of more than one interpretation, some of which may render it
unconstitutional, the court will adopt a construction which sustains the
statute's constitutionality, if at all possible.' State ex rel. Faulk v.
CSG Job Ctr., 117 Wn.2d 493, 500, 816 P.2d 725 (1991). The majority holds
that Congress does not have the authority, as a result of the Tenth
Amendment, to enact a provision as sweeping as the majority believes sec.
409 and its subsequent amendment were intended to be. Specifically, the
majority states:
While Congress was authorized under its enumerated powers to enact 23
U.S.C. sec. 409 in its pre-1995 form, we find that its 1995 amendment of
that statute cannot be characterized as a valid exercise of any power
constitutionally delegated to the federal government.
Majority at 43. Of course, the interpretation of sec. 409 that I propose
does not run afoul of the Tenth Amendment, as is all but conceded by the
majority, since it is a clearly valid exercise of the Federal Spending
Power. Id. at 36; see Martinolich v. So. Pac. Transp. Co., 532 So. 2d 435,
438 (La. Ct. App. 1988); Claspill v. Mo. Pac. R.R., 793 S.W.2d 139 (Mo.),
cert. denied, 498 U.S. 984 (1990); South Dakota v. Dole, 483 U.S. 203, 107
S. Ct. 2793, 97 L. Ed. 2d 171 (1987).
Because the record before this Court does not permit us to accurately
determine whether the disputed documents would be privileged under the
correct interpretation of sec. 409, like the majority, I would remand for
further proceedings.