Derek E. Gronquist v. Dept. Of Corrections, State Of Wa ( 2013 )

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BY
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IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
DEREK E. GRONQUIST, No. 42774 -5 - II
consolidated with)
Appellant,
V.
STATE OF WASHINGTON, DEPARTMENT
OF CORRECTIONS,
No. 43500 -4 -II
DEREK E. GRONQUIST,
Appellant,
V. PART PUBLISHED OPINION
STATE OF WASHINGTON, DEPARTMENT
OF CORRECTIONS,
HUNT, J. — Derek E. Gronquist appeals several superior court orders and findings
1
entered in his Public Records Act (PRA) lawsuit. He argues that the superior court erred in ( 1)
limiting the penalty period of the Department of Corrections ( DOC)' s PRA violation and
awarding a penalty amount that was too small; and ( 2) concluding that the surveillance video
1
Chapter 42. 56 RCW.
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recordings he requested on August 5, 2007, were exempt from disclosure under the PRA. We
hold that RCW 42. 56. 565( 1) bars an award of PRA penalties to Gronquist because ( 1) he was
serving a criminal sentence in a correctional facility when he made his PRA request to DOC; ( 2)
the superior court found no bad faith in DOC' s inadvertent omission of one page from the
documents it produced in response to his PRA request; and ( 3) no final judgment had yet been
entered in his PRA action at the time the legislature enacted this prohibition in 2011. We further
hold that the prison surveillance video recordings that Gronquist requested were exempt from
2
disclosure under RCW 42. 56. 240( 1). Accordingly, we affirm.
FACTS
I. PRA REQUESTS To DOC
A. July 30, 2007 Request
On July 24, 2007, DOC inmate Derek E. Gronquist sent a PRA request to DOC seeking:
1. All [ DOC] inmate identification badges /cards from undocumented alien
workers employed by DOC' s Class II Industriesp] [....];
2. All records demonstrating the payment of any wages, gratuities, or other forms
of payment to undocumented alien workers employed by the DOC[ ....];
3. All records revealing internal DOC communications and /or deliberations
concerning the use of undocumented alien workers in DOC' s Industries program.
Clerk' s Papers ( CP) at 252 -53. Gronquist clarified that "` undocumented alien worker "' meant
any person who is not a [ U] nited [ S] tates citizen and who does not possess a current and valid
work permit or similar document authorizing such person to be employed in the [ U] nited
2
Because DOC did not cross -appeal the superior court' s award of a PRA penalty to Gronquist,
the propriety of this award is not before us in the instant appeal.
3 Neither Gronquist' s request nor the record explains what " DOC' s Class II Industries program"
encompasses.
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S] tates." CP at 253. DOC received this request on July 30. The next day, DOC responded that
it had no records to disclose in response to Gronquist' s request because DOC' s Class II
Industries program did not identify offenders by citizenship and citizenship was not a part of its
employment process.
B. August 9, 2007 Request
On August 9, DOC received from Gronquist a second, unrelated PRA request to DOC
dated August 5, stating:
I am requesting the following records concerning an assault and /or extortion
attempt that happened to me at the Clallam Bay Correction[ s] Center on June 17,
2007:
1. All documents created in response to, or because of, this incident;
4. The surv[ e] illance video of C -unit from 6: 00 a.m. to 2: 00 p.m. of June
17, 2007;
5. The surv[ e] illance video of the chow hall used for C -unit inmates on
and for the [ b] reakfast meal on June 17, 2007;
9. The complete [ i]nternal [ i]nvestigations file.
CP at 215 - 16. In response to this request, on October 26, DOC staff ( 1) mailed Gronquist 96
pages of documents, from which 1 page was inadvertently missing; and ( 2) claimed that the
surveillance video recordings were exempt from PRA disclosure under former RCW
42. 56. 420( 2) ( 2005), providing a brief explanation for this claimed exemption. On November 2,
the Stafford Creek Corrections Center intercepted this mail and withheld 39 pages of documents
4
and 11 photographs in accordance with DOC' s mail rejection policy.
4 The record on appeal neither includes nor explains DOC' s mail rejection policy.
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Eventually DOC released these intercepted documents to Gronquist during the discovery
process in an unrelated case. Gronquist did not alert DOC about the single missing page from
the 96 pages it had provided. When DOC later learned about the missing page through
Gronquist' s lawsuit, it located and supplied it to him.
H. JUDICIAL REVIEW
On June 12, 2009, Gronquist filed a motion for judicial review under the PRA, asking the
superior court to require DOC to " show cause" why " disclosure of requested public records
should not be compelled and sanctions imposed" for DOC' s alleged PRA violations. CP at 429.
On July 27, Gronquist filed a complaint in superior court, claiming DOC had violated the PRA in
1) failing to conduct an adequate search for records involving " undocumented alien workers ";
2) withholding surveillance video recordings; and ( 3) improperly withholding one page from the
internal investigation report. CP at 321. Gronquist also alleged that Stafford Creek' s screening
and withholding of 39 pages and 11 photographs of his PRA documents violated the free speech
clause of the Washington Constitution, article I, section 5.
A. December 18, 2009 PRA Order, Findings, and Penalty
On December 18, 2009, the superior court ruled that ( 1) DOC had violated the PRA by
inadvertently withholding one page of the documents it had provided in response to Gronquist' s
August 9, 2007 PRA request; ( 2) DOC' s omission had not been in bad faith; ( 3) Gronquist had
failed to request identifiable records when he requested information about undocumented alien
workers ( because " records in the form requested did not exist "); and ( 4) DOC properly withheld
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surveillance video tapes from disclosure under RCW 42. 56. 240( 1). I CP at 125. For
inadvertently having withheld 1 page, the superior court ordered DOC to pay a PRA penalty of
15 per day for 24 days, for a total of $260 to Gronquist.
Arguing fraud, Gronquist later moved to vacate the superior court' s December 18 order.
The superior court denied this motion.
B. Motion To Dismiss; January 3, 2011 Order
On October 8, 2010, DOC moved to dismiss Gronquist' s PRA action under CR 12( b)( 6).
DOC argued that ( 1) the superior court had resolved all of Gronquist' s PRA claims in its
December 18, 2009 show cause order; and ( 2) the superior court should dismiss Gronquist' s
remaining art. 1, § 5 claim as a matter of law because ( a) violations of the Washington
Constitution are not independently actionable torts, and (b) Gronquist had no protected interest in
receiving uncensored mail in prison. On January 3, 2011, the superior court granted the motion
in part and dismissed all of Gronquist' s PRA claims except his claim for injunctive relief from
DOC' s withholding a portion of his incoming mail " without legitimate peneological [ sic]
reasons." I CP at 98 -99.
C. Motion To Amend; February 27, 2012 Order
On January 31, 2012, Gronquist moved for leave to file a second amended complaint,
restating his previously resolved and dismissed PRA claims, but adding an allegation that DOC
had violated the PRA by failing to conduct an adequate search for records. On February 27, the
5
The legislature amended RCW 42. 56. 240 in 2010, 2012, and 2013. LAWS of 2013, ch. 315 § 2;
ch. 190 § 7; ch. 183 § 1; LAWS of 2012, ch. 88 § l; LAWS of 2010, ch. 266 § 2; ch. 182 § 5. The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.
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superior court ( 1) denied Gronquist' s motion as untimely; and ( 2) dismissed Gronquist' s sole
remaining art. I, § 5 claim with prejudice because he had stated in his memorandum that his art.
6
I, § 5 claim was , moot. ,, Suppl. CP at 477.
Gronquist appeals the superior court' s ( 1) December 18, 2009 findings and penalty
order; ( 2) January 3, 2011 order granting in part and denying in part DOC' s motion to dismiss;
and ( 3) February 27, 2012 order denying Gronquist' s motion for leave to amend his complaint
and dismissing his remaining claims.
ANALYSIS
I. RCW 42. 56. 565( 1) : ABSENCE OF BAD FAITH BARS PRA PENALTY FOR PRISONER
Gronquist challenges the amount of the superior court' s December 18, 2009 penalties.
He argues that the superior court lacked authority to reduce the penalty period for DOC' s
inadvertent late disclosure of 1 page of the 96 pages of documents it had provided in response to
his PRA request. We hold that RCW 42. 56. 565( 1) defeats this argument because ( 1) DOC did
provide him the missing page when it became aware of its inadvertent earlier omission from the
96 pages it had timely provided in response to his second PRA request; ( 2) the superior court
expressly found that DOC had not acted in bad faith in having inadvertently omitted this page;
6
See Gronquist' s memorandum in support of this motion. See also Gronquist' s related motion,
in which he stated that because he had since received the records that were the basis of his art. I,
5 claim, injunctive relief was no longer necessary.
7 DOC does not cross -appeal the trial court' s imposition of PRA penalties, including the amount.
It challenges only Gronquist' s assertion that the trial court erred in calculating penalties that were
too low, or, in the alternative, that Gronquist' s claim is moot in light of RCW 42. 56. 565( 1).
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and ( 3) RCW 42. 56. 565( 1) prohibits an award of any PRA penalties to a prison inmate serving a
criminal sentence absent a showing of bad faith.$
The question of whether the PRA authorizes a trial court to reduce the penalty period is a
question of law, which we review de novo. Yousoufian v. Office of Ron Sims, 152 Wash. 2d 421,
9
436, 98 P.3d 463 ( 2004). We look to a statute' s plain language to give effect to legislative
intent. Lacey Nursing Ctr., Inc. v. Dep' t of Revenue, 128 Wash. 2d 40, 53, 905 P.2d 338 ( 1995).
When faced with an unambiguous statute, we derive the legislature' s intent from the plain
language alone. Waste Mgmt. of Seattle, Inc. v. Util. & Transp. Comm' n, 123 Wash. 2d 621, 629,
869 P.2d 1034 ( 1994).
RCW 42. 56. 565( 1) provides:
A court shall not award penalties under RCW 42. 56. 550( 4) to a person who was
serving a criminal sentence in a state, local, or privately operated correctional
facility on the date the request for public records was made, unless the court finds
that the agency acted in badfaith in denying the person the opportunity to inspect
or copy a public record.
8
Although neither party argues that RCW 42. 56. 565( 1) generally prohibits prisoners' receipt of
any PRA penalties ( see discussion later in this Analysis), we may affirm the superior court on
any ground the record supports. State v. Costich, 152 Wash. 2d 463, 477, 98 P.3d 795 ( 2004).
9 The legislature' s 2005 recodification of the Public Disclosure Act,. chapter 42. 17 RCW, as the
Public Records Act, chapter 42. 56 RCW, LAWS of 2005, ch. 274, § 1, did not alter the pertinent
language on which our Supreme Court relied in Yousoufian. See former RCW 42. 17; RCW
42. 56. Accordingly, we refer to the PDA by its current title, the PRA.
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Emphasis added). The legislature further specified that the above subsection ( 1) " applies to all
actions brought under RCW 42. 56. 550 in which final judgment has not been entered as of the
effective date of this section [ July 22, 2011]." LAWS of 2011, ch. 300, § 2 ( emphasis added).
Generally, a " final judgment" is a judgment that ends all litigation, including appellate
review, leaving nothing for the court to do but to execute the judgment. Anderson & Middleton
Lumber Co. v. Quinault Indian Nation, 79 Wn. App. 221, 225, 901 P.2d 1060 ( 1995) ( citing
Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 ( 1945)), aff d, 130
Wash. 2d 862, 929 P.2d 379 ( 1996). But the legislature did not specify whether its statutory
reference to a " final judgment" in the comment to RCW 42. 56. 565( 1) encompasses this broad
concept of complete and final adjudication of an issue, including exhaustion of appellate review.
See In re Skylstad, 160 Wash. 2d 944, 948 -49, 162 P.3d 413 ( 2007) ( judgment becomes final " when
all litigation on the merits ends," interpreting RCW 10. 30. 090 in criminal context).
This broad interpretation of " final judgment" is consistent with several recent
Washington cases addressing RCW 42. 56. 565. See Franklin County Sheriff' s Office v.
Parmelee, 175 Wash. 2d 476, 481 n. 5, 285 P.3d 67 ( 2012) ( contemplating the superior court' s
application of RCW 42. 56. 565 on remand, notwithstanding its being enacted after the plaintiff
sought interlocutory review), cent. denied, 133 S. Ct. 2037 ( 2013); DeLong v. Parmelee, 164 Wn.
App. 781, 786 -87, 267 P.3d 410 ( 2011) ( applying RCW 42. 56. 565( 1) on appeal to bar an
inmate' s recovery of PRA penalties, notwithstanding its being enacted after the original trial),
to
See Burt v. Washington State Department of Corrections, 168 Wash. 2d 828, 837 n.9, 231 P.3d
191 ( 2010) ( noting that legislature' s enacting of RCW 42. 56. 565 would " greatly curtail abusive
prisoner requests for public records ").
N.
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review denied, 173 Wash. 2d 1027 ( 2012). We apply this generally accepted broad definition of
final judgment" here.
In 2011, while Gronquist' s PRA claims were awaiting appellate review, our legislature
promulgated RCW 42. 56. 565( 1), accompanied by a " final judgment" limitation in the related
comment; thus, no " final judgment" has yet been entered in his action. Gronquist is serving a
criminal sentence. And the superior court found no bad faith in DOC' s inadvertently omitting
one page from the documents it provided in response to Gronquist' s second PRA request. Thus,
RCW 42. 56. 565( 1) applies to bar his claim for PRA penalties. Holding that because Gronquist is
not statutorily entitled to any amount of PRA penalties, we do not further consider his argument
that the penalty amounts the superior court awarded him were too small. DOC did not cross
appeal this award, thus, we must leave the superior court' s PRA penalty intact.
II. SURVEILLANCE VIDEO RECORDINGS; STATUTORY EXEMPTION
Gronquist next argues that the superior court erred in concluding that the surveillance
video recordings he requested on August 9, 2007, were exempt from disclosure. Again, we
disagree.
We liberally construe the PRA in favor of disclosure and narrowly construe its
exemptions. RCW 42. 56. 030. The PRA requires agencies to disclose any public record upon
request unless an enumerated exemption applies. Sanders v. State, 169 Wash. 2d 827, 836, 240
P.3d 120 ( 2010); RCW 42. 56. 070( 1). The burden of proof is on the agency to establish that a
specific exemption applies. Neighborhood Alliance of Spokane County v. County of Spokane,
172 Wash. 2d 702, 715, 261 P.3d 119 ( 2011).
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Gronquist' s August 9, 2007 PRA request sought " surveillance video of C -unit from 6: 00
a. m. to 2: 00 p. m. of June 17, 2007" and " surveillance video of the chow hall used for C -unit
inmates on and for the [ b] reakfast meal on June 17, 2007." CP at 215 - 16. In its response to
Gronquist' s show cause motion, DOC argued that the surveillance video recordings were exempt
under RCW 42. 56. 240, which provides:
The following investigative, law enforcement, and crime victim information is
exempt from public inspection and copying under this chapter:
1) Specific intelligence information and specific investigative records
compiled by investigative, law enforcement, and penology agencies, and state
agencies vested with the responsibility to discipline members of any profession,
the nondisclosure of which is essential to effective law enforcement or for the
protection of any person' s right to privacy.
CP at 191.
To demonstrate how nondisclosure of these surveillance videos is " essential to effective
law enforcement, " 11 the DOC supplied the declaration of Richard Morgan, DOC' s Director of
Prisons. Morgan explained that DOC' s surveillance system is ( 1) "[ o] ne of the most important
12
tools for maintaining the security and orderly operation of prisons," and ( 2) " an essential
element of effective control of a population that is 100 [ percent] criminal in its composition and
is accustomed to evading detection and exploiting the absence of authority, monitoring, and
accountability" 13 as follows:
11 RCW 42. 56.240( 1).
12 CP at 290.
13 CP at 290.
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Since the resources are not available to accomplish 100 [ percent] surveillance at
all times, it is mission critical that offenders and their cohorts not. know the
capabilities and the limitations of DOC' s surveillance capabilities.
It is a significant advantage to have offenders uncertain as to what is being
monitored, what is recorded, and what is in the field of view. Offenders will often
use " blind spots" ( locations that have infrequent staff presence and no electronic
surveillance) to commit acts of violence and purveying contraband. In
reconstructing incidents and interviewing offenders, it has been found that
incident location is often chosen due to a perceived lack of surveillance. In my
expert opinion, surveillance, real or imagined, is a powerful deterrent to assaults
and other problematic behaviors by offenders.
CP at 290 -91. Morgan concluded, " Providing offenders access to recordings of DOC
surveillance videos would allow them to accurately determine which areas are weak or devoid in
DOC' s ability to capture identities in the aftermath of an incident or crime." CP at 291. The
record contains no controverting evidence. 14
Under RCW 42. 56. 240( 1), an investigative, law enforcement, or penology agency must
have compiled the "[ s] pecific intelligence information and specific investigative records" that the
requester seeks. Secondly, the agency must show that the " nondisclosure" of the information is
essential to effective law enforcement." RCW 42. 56. 240( 1). Gronquist does not contend that
DOC is not a law enforcement agency. And, as Morgan explained, providing inmates with
14
Gronquist cites Prison Legal News, Inc. V. Department of Corrections, 154 Wash. 2d 628, 643,
115 P.3d 316 ( 2005), to argue that DOC' s claiming exemption of disclosure of prison video
surveillance recordings is contrary to our general instruction to construe PRA exemptions
narrowly. Prison Legal News, however, does not control here. In Prison Legal News, DOC
attempted to withhold identifying information in public records related to medical misconduct
investigations in Washington prisons. 154 Wn.2d at 632. Examining the " specific investigative
records" exemption of former RCW 42. 17. 310( 1)( d) ( 2003), now codified as RCW 42. 56. 240( 1),
our Supreme Court held that DOC failed to meet its burden in proving that the redactions were
essential to effective law enforcement. "' Prison Legal News at 639. Here, as we note above,
DOC has sustained its burden in showing that nondisclosure is " essential to effective law
enforcement."
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access to recordings of DOC' s surveillance videos would allow prisoners to exploit weaknesses
in DOC' s surveillance system. As Division One of our court has held, " Intelligence information
provided by video surveillance systems ... falls squarely within the core definitions of `law
enforcement, "' thereby exempting surveillance video recordings from disclosure under RCW
42. 56. 240( 1). Fischer v. Wash. State Dep' t of Corr., 160 Wash. App. 722, 727 -28, 254 P.3d 8242011), review denied, 172 Wash. 2d 1001 ( 2011). We hold, therefore, that the superior court did
not err in concluding that the surveillance video recordings Gronquist sought were exempt from
the PRA' s otherwise broad disclosure requirements.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2. 06. 040, it is so ordered.
Gronquist further argues that the superior court erred in ( 1) denying his motion to vacate
the December 18, 2009 show cause order; ( 2) concluding that his July 30, 2007 PRA request did
not seek' identifiable public records; ( 3) denying his motion to amend his complaint as untimely;
and ( 4) dismissing his free speech claim. Gronquist also argues that DOC failed to conduct an
objectively reasonable search for records in response to his July 30, 2007 PRA request and that
RCW 72. 09. 530 is unconstitutionally overbroad. Holding that the superior court did not err and
refusing to consider unpreserved arguments Gronquist raises for the first time on appeal, we
affirm.
III. MOTION TO VACATE
Gronquist contends that the superior court abused its discretion in denying his motion to
vacate the December 18, 2009 show cause order, which decision, he argues, " was based upon the
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untenable conclusion that the previous `[ o] rder was correct, in that video recordings are
categorically exempt from disclosure." Second Amend. Br. of Appellant at 51 ( alteration in
original) ( quoting CP at 11). We have just held that the trial court did not err in concluding that
the surveillance video recordings were exempt under RCW 42. 56. 240( 1). Because Gronquist
fails to articulate any other reason why the superior court' s decision was in error, we do not
further address this claim.
IV. REQUEST FOR NONEXISTENT " UNDOCUMENTED ALIEN LABOR" RECORDS
A. Unidentifiable Records Request
Gronquist next argues that the superior court erred in its December 18, 200915 order when
it concluded that his July 30, 2007 PRA request for "[ a] ll [ DOC] inmate identification
16
badges /cards from undocumented alien workers employed by DOC' s Class II Industries " did
not seek " identifiable" public records. Second Am. Br. of Appellant at 22, 28. We disagree.
The PRA requires agencies_to. respond to requests for only " identifiable public records."
RCW 42. 56. 080; see also Hangartner v. City of Seattle, 151 Wash. 2d 439, 447 -48, 90 P.3d 262004). A party seeking public records under the PRA must, " at a minimum, provide notice that
the request is made pursuant to the [ PRA] and identify the documents with reasonable clarity to
allow the agency to locate them." Hangartner, 151 Wn.2d at 447 ( citing Wood v. Lowe, 102
Wn. App. 872, 878, 10 P.3d 494 ( 2000)). " The [ PRA] does not require agencies to research or
15
The Second Amended Br. of Appellant at 28 refers to the superior court' s " December 18,
2007" order. We believe this to be a scrivener' s error and reference should be to the court' s
December 18, 2009 order.
CP at 252.
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explain public records, but only to make those records accessible to the public." Smith v.
Okanogan County, 100 Wn. App. 7, 12, 994 P.2d 857 ( 2000) ( citing Bonamy v. City of Seattle,
92 Wn. App. 403, 409, 960 P.2d 447 ( 1998), review denied, 137 Wash. 2d 1012 ( 1999)).
Moreover, an agency has no duty to create or produce records that are nonexistent. West v.
Wash: State Dep' t of Natural Res., 163 Wn. App. 235, 242., 258 P.3d 78 ( 2011), review denied,
173 Wash. 2d 1020 ( 2012).
Gronquist argues that because DOC Policy 330. 700 states that DOC " will identify
offenders who are citizens of other nations," the superior court erred in finding that Gronquist' s
request for " undocumented alien workers" in DOC' s Class II Industries program did not seek
17 .
identifiable public records. Second Am. Br. of Appellant at 24, 26 -27 ( quoting CP at 425).
There is no support for this claim in law or in the record. Michael Holthe, Clallam Bay
Corrections Center' s Public Disclosure Coordinator, declared that after receiving Gronquist' s
July 30, 2007 request, he had inquired with the Class II Industries program manager, who
explained that Class II Industries did not identify offenders by citizenship and that such
17
Contrary to Gronquist' s assertion, DOC' s identification of offenders by citizenship does not
suggest that DOC' s Class II Industries program similarly identifies its workers by their
citizenship. Moreover, there is nothing further in the record to suggest that the superior court
erred in concluding that " records in the form requested did not exist." CP at 125 ( emphasis
added).
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classification was not part of its employment process. 18 Thus, the record supports the superior
court' s ruling that there were no identifiable records matching Gronquist' s request. We hold,
therefore, that the superior court did not err in ruling that Gronquist' s request had been for non-
existent, or unidentifiable, records.
B. Objectively Reasonable Search for Records
In a related argument, Gronquist contends for the first time on appeal that DOC failed to
conduct an objectively reasonable search for " undocumented alien labor" records. Second Am.
Br. of Appellant at 29. Because Gronquist failed to raise this issue below, we do not address it
on appeal.
An argument neither pleaded nor argued to the trial court cannot be raised for the first
time on appeal." Sourakli v. Kyriakos, Inc., 144 Wn. App. 501, 509, 182 P.3d 985 ( 2008) ( citing ,
Sneed v. Barna, 80 Wn. App. 843, 847, 912 P.2d 1035 ( 1996)). Furthermore, we " may refuse to
review any claim of error which was not raised in the trial court." RAP 2. 5( a). Because
Gronquist failed to raise this alleged error below, we decline to review it for the first time on
appeal.
18 Gronquist argues extensively that, because DOC has access to a variety of information about
its inmates, including citizenship, it could have compared each of its Class II Industries workers
against its other records to provide Gronquist his requested information. As we have already
explained, the PRA does not require any agency to create documents in response to PRA
requests. See Smith, 100 Wn. App. at 12 ( " An important distinction must be drawn between a
request for information about public records and a request for the records themselves. "); West,
163 Wn. App. at 242 ( Agency has no duty to create or produce a record that is nonexistent).
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V. MOTION TO AMEND COMPLAINT
Gronquist next argues that the superior court erred in denying as untimely his request for
leave to amend his complaint to add a new PRA claim. Again, we disagree.
We review for abuse of discretion a trial court' s ruling on a motion to amend the
complaint. Caruso v. Local Union No. 690 ofInt' l Bhd. of Teamsters, 100 Wash. 2d 343, 351, 670
P.2d 240 ( 1983). A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482
P.2d 775 ( 1971). To amend a pleading after the opposing party has responded, the party seeking
to amend must obtain the trial court' s leave or the opposing party' s consent. CR 15( a). A trial
court must grant leave freely " when justice so requires." CR 15( a). But undue delay is a proper
ground for denying leave to amend. Elliott v. Barnes, 32 Wash. App. 88, 92, 645 P.2d 11361982); see also Wilson v. Horsley, 137 Wash. 2d 500, 507, 974 P.2d 316 ( 1999) ( request to amend
on eve of trial supported denial of leave to amend).
Here, Gronquist requested leave from the superior court to file a second amended
complaint on January 31, 2012, more than two and a half years after he filed his first amended
complaint and DOC filed its answer, and more than one year after the superior court dismissed
his remaining PRA claims. Moreover, Gronquist has neither designated any record nor
identified in his brief any reason to show why the superior court erred in ruling that his motion to
amend was untimely. See RAP 10. 3( a)( 6) ( Appellant must provide argument in support of the
issues presented for review, together with citations to legal authority and references to relevant
parts of the record). " Such `[ p] assing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration. "' West v. Thurston County, 168 Wash. App. 162, 187,
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275 P.3d 1200 ( 2012) ( alteration in original) ( quoting Holland v. City of Tacoma, 90 Wash. App.
533, 538, 954 P.2d 290 ( 1998)). Thus, we do not further consider this unsupported argument.
VI. ART I, § 5 CLAIMS
Gronquist next argues that Stafford Creek' s seizure of some of the PRA documents DOC
had mailed to him violated his freedom of speech contrary to article I, section 5 of the
Washington Constitution. He also argues for the first time on appeal that RCW 72. 09. 530 is
unconstitutionally overbroad. These claims fail.
A. Mail Room Seizure Claim Abandoned
It is a long -standing rule that abandoned issues will not be addressed on appeal." Green
19
v. Normandy Park, 137 Wn. App. 665, 688, 151, P. 3d 1038 ( 2007); RAP 2. 5( a). In his
memorandum in support of his motion requesting leave to amend his complaint, Gronquist
notified the superior court that since bringing his original complaint alleging his art. I, § 5
challenge, DOC had " produced the previously censored records at issue" and that the production
20
of these records rendered his art. I, § 5 claim " moot. " Suppl. CP at 476, 477. The record
19
See also Peck v. Davies, 154 Wash. 559, 563, 283 P. 173 ( 1929); Gregory v. Peabody, 138
Wash. 591, 597, 244 P. 998 ( 1926); Buckeye Buggy Co. v. Montana Stables, Inc., 43 Wash. 49,
51, 85 P. 1077 ( 1906); Soderberg Moore
Adver., Inc. v. Kent — Corp., 11 Wash. App. 721, 737, 524
P.2d 1355 ( 1974); Stratton v. U.S. Bulk Carriers, Inc., 3 Wash. App. 790, 793 - 94, 478 P.2d 2531970).
20
Gronquist argues that ( 1) his first amended complaint raised both " facial" and " as applied"
free speech challenges, ( 2) the superior court dismissed the " facial" challenge in response to
DOC' s motion to dismiss, and ( 3) he abandoned only his " as applied" challenge as " moot."
Reply Br. of Appellant at 10 - 11. But after a careful review of the record on appeal, we conclude
that Gronquist' s characterization of his first amended complaint is inaccurate: Gronquist alleged
that DOC' s censorship of public records " violate[ d] the Free Speech Clause of Article I, Section
5 of the Washington State Constitution." CP at 324. Contrary to his assertions on appeal, his
first amended complaint did not raise two separate free speech challenges.
17
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)
shows that the superior court relied on Gronquist' s assertion that his claim was " moot" when it
dismissed his art. I, § 5 challenge and denied Gronquist' s motion requesting leave to amend his
complaint to add a new PRA claim that DOC failed " to locate, identify, and allow inspection of
records relating to ... staff involvement in the assault of Mr. Gronquist." Suppl. CP at 477.
Thus, there was no reason for the superior court to consider this claim further; similarly, there is
no justiciable issue for us to address in this appeal. Holding that Gronquist abandoned his free
speech challenge below, we do not further consider Gronquist' s " facial" challenge on appeal.
B. RCW 72. 09. 530 Constitutionality Claim Moot
Gronquist also argues for the first time on appeal that that RCW 72. 09. 530, which
prohibits an inmate' s " receipt or possession of anything that is determined to be contraband," is
unconstitutionally overbroad. Even assuming, without deciding, that Gronquist can raise this
argument in his reply brief, we disagree that he is articulating a " manifest constitutional error
21
that may be raised for the first time on appeal" under RAP 2. 5( a)( 3), especially in light of the
mootness of this claim. Reply Br. of Appellant at 12 ( citing RAP 2. 5( a)( 3)).
As a general rule, Washington appellate courts will not address " moot questions or
abstract propositions." Norman v. Chelan County Pub. Hosp. Dist. No. 1, 100 Wash. 2d 633, 635,
21
Moreover, Gronquist' s argumentthat RCW 72. 09. 530 is unconstitutionally overbroad — is
not an " error" that was " manifest" in any proceeding below; rather, it is a challenge to the
constitutionality the statute itself and not an error committed by the superior court. See State
of
v. Grimes, 165 Wash. App. 172, 187, 267 P.3d 454 ( 2011), review denied, 175 Wash. 2d 1010 ( 2012)
for RAP 2. 5( a)( 3) to apply, an appellant must show both that ( 1) the error implicates a
specifically identified constitutional right, and ( 2) the error is " manifest," in that it had " practical
and identifiable consequences" in the trial below). Merely challenging the constitutionality of
the statute does not permit Gronquist to avail himself of RAP 2. 5( a)( 3)' s exception to the general
rule precluding review of issues not preserved below.
wc
No. 42774 -5 -II (consolidated with No. 43500 - -II)
4
673 P.2d 189 ( 1983) ( quoting Sorenson v. Bellingham, 80 Wash. 2d 547, 558, 496 P.2d 51222
1972)). An appeal is moot where it presents " purely academic " questions and where "` the
court cannot provide the basic relief originally sought, or can no longer provide effective relief."'
IBF, LLC v. Heuft, 141 Wn. App. 624, 630 -31, 174 P.3d 95 ( 2007) ( internal quotation marks
omitted) ( quoting Josephinium Assocs. v. Kahli, 111 Wash. App. 617, 622, 45 P.3d 627 ( 2002)).
Because Gronquist has since received the records that Stafford Creek seized in the mail room, we
cannot afford him any relief. Thus this issue is moot, and we need not further address it.
We affirm.
A majority of the panel having determined that this part of the opinion will not be printed in
the Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Hunt, J.
lviaxa, J.
22
City of Sequim v. Malkasian, 157 Wash. 2d 251, 258, 138 P.3d 943 ( 2006) ( internal quotation
marks omitted) ( quoting State v. Turner, 98 Wash. 2d 731, 733, 658 P.2d 658 ( 1983)).
19