Eugster Law & Comment

The Washington Court of Appeals, Division Three, decided another case dealing with whether the Washington Public Disclosure Act (RCW Ch. 42.56) applies to non-public entities which provide government services at the behest of the government. Leonora Claire Clarke v. Tri-Cities Animal Care & Control Shelter, No. 25222-1 - III (Apr. 24, 2008). In this case, the court held the PDA did apply.

The issue was the same in Spokane Research & Defense Fund v. West Central Community Development Association, 137 P.3d 120, 133 Wash.App. 602, pet. rev. denied (2006). In this case, the court held that the non-public entity providing government services was not subject to the PDA.

So what was the difference? When one looks at the facts of the cases one will find that the facts of each are not fundamentally different. One will also find that the law applied in one is the same law applied in the the other. The similarity of facts is further enhanced by virtue of the legislative dierection that the PDA is to be liberally construed and liberally applied. RCW 42.56.030.

So what was the reason for the difference? There can be no reason based upon the law. There can be no real reason based upon the facts. So why is there a difference? Is it the judges — not really, because two of the judges were two of the three in both cases. The author of the second opinion (D. Stephens, J), the one in which the court reached the right result under the PDA is clearly a better judge than the other two and significantly better than the judge who was not on the panel in the second case. In addition, this judge is clearly a better thinker than the judge who was the author of the first decision ( S. Brown, J).

So what was the difference for the judges who were on both of the cases? Why did they act inconsistently? The only conclusion one can reach is that for these two, irrational processes were at stake. Maybe they liked the plaintiff in one case but not the other, maybe they had a disregard for one or more of the attorneys, maybe the services the agency was performing in one case were more appealing that than the services performed by the other? One could only guess.

In any case it looks as though at least two judges on the Court of Appeals make decisions based upon irrational factors at least as far as these two cases may be concerned. That is, they decide cases arbitrarily and not according to the law and the facts. More troublesome is that these judges seem to allow the court to be used for purposes of the dispensation of power based upon the arbitrary whims of the judges.

The court affords the protection of the law to some but not to others. Its actions are arbitrary. They are political. They constitute the use of power for some and the denial of the power to others in cases which are essentially the same.