Lindberg v. Kitsap County ( 1997 )

Sanders, J.

(concurring in part, dissenting in part) — I concur in Chief Justice Durham’s concurrence/dissent, however, I write separately only to add a further qualification to my concurrence, with her concurrence, in the majority.

Kitsap County essentially defended this Public Disclosure Act action by claiming if it were required to copy and disclose the subject documents at the request of Lindberg, it would risk liability to Pac-Tech Engineering and Hasan for potential copyright infringement. Therefore Kitsap County requested that these persons be made parties to the proceeding to avoid the substantial risk of incurring inconsistent obligations. Compare Weisberg v. United States Dep’t of Justice, 631 F.2d 824 (D.C. Cir. 1980) (government runs a substantial risk of incurring inconsistent obligations between compliance with the Freedom of Information Act and a possible copyright infringement action brought by the copyright holder).

Notwithstanding, the majority affirms the trial court determination that disclosure must be made under the Public Disclosure Act while denying the motion to join the copyright holders as necessary parties. Furthermore, the majority refrains from determining certain issues raised by Kitsap County for the first time on appeal, affirmatively concluding "[pjersons who may be involved in the subject matter of an action are not necessary parties where they would not be prejudiced by the judgment.” Majority at 747.

Therefore, it must be firmly understood that the copyright holders, who are not parties to this action, cannot and may not be prejudiced by this result. For example should they commence a separate action against parties to this proceeding, or third parties, upon an infringement of copyright claim, nothing in the majority opinion can present any bar to that claim, nor is any issue of fact or law precluded to the prejudice of persons not parties to this proceeding.

Madsen, J., concurs with Sanders, J.