Roger Leishman v. Ogden, Murphy & Wallace

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROGER LEISHMAN, ) No. 77754-8-I
)
Appellant, )
) DIVISION ONE
v.
) ORDER WITHDRAWING
OGDEN MURPHY WALLACE PLLC, ) OPINION AND SUBSTITUTING
and PATRICK PEARCE, ) OPINION
)
Respondents.
__________________________________________________________________________________)
The court has determined that the opinion in the above-entitled case filed on
September 3, 2019 shall be withdrawn and a substitute published opinion be flied.
Now, therefore, it is hereby
ORDERED that the opinion filed on September 3, 2019 is withdrawn and a
substitute published opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROGER LEISHMAN, ) No. 77754-8-I
Appellant, )
) DIVISION ONE
v. )
)
OGDEN MURPHY WALLACE PLLC, ) PUBLISHED OPINION
and PATRICK PEARCE, )
)
Respondents. ) FILED: October 21, 2019
MANN, A.C.J. —Washington’s anti-SLAPP statute, RCW 4.24.510,1 provides
immunity from civil liability for a “person” that communicates a complaint or information
to a federal, state, or local agency, regarding a matter of reasonable concern to the
agency. In Seqaline v. Dep’t of Labor & Indus., 169 Wash. 2d 467, 470, 238 P.3d 1107
(201 0), a plurality of our Supreme Court held that a government agency communicating
information to another government agency is not a “person” and therefore not afforded
immunity under RCW 4.24.5 10. We are asked here to determine whether a
1As the legislature explained:
Strategic lawsuits against public participation, or SLAPP suits, involve communications
made to influence a government action or outcome which results in a civil complaint or
counterclaim filed against individuals or organizations on a substantive issue of some
public interest or social significance. SLAPP suits are designed to intimidate the exercise
of First Amendment rights and rights under Article I, section 5 of the Washington state
Constitution.
LAWS OF 2002, Chapter 232, § 1.
No. 77754-8-U2
government contractor working within the scope of its contract is a ‘person” under RCW
4.24.510.
Roger Leishman sued Ogden Murphy Wallace, PLLC and Patrick Pearce
(collectively “0MW”) for negligence, violation of the Washington Consumer Protection
Act (CPA), ch. 19.86 RCW, negligent misrepresentation, fraud, and discrimination, in
connection to services rendered by 0MW to the Washington Attorney General’s Office
(AGO) for an internal investigation of a workplace dispute involving Leishman. 0MW
moved for dismissal on the pleadings, arguing that 0MW was immune from civil liability
under RCW 4.24.510 for communicating the findings of its investigation to the AGO.
The trial court agreed.
On appeal, Leishman contends that RCW 4.24.510 does not support the trial
court’s decision and that 0MW, a government contractor, is not a “person” under the
statute. We agree, and consistent with the plurality in Seqaline, hold that government
contractors, when communicating to a government agency under the scope of their
contract, are not “persons” entitled to protection under RCW 4.24.510.
We reverse.
Leishman began employment in July 2015 with the AGO as Chief Legal Advisor
for Western Washington University. Shortly after beginning work at the AGO, Leishman
began exhibiting serious trichotillomania, anxiety, and other symptoms. Leishman
disclosed his symptoms to the AGO as well as his prior history of managing mild
anxiety. In November 2015, Leishman’s physician diagnosed him with post-traumatic
stress disorder (PTSD) and serious codependency. Leishman informed the AGO of his
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new diagnosis and ultimately submitted a formal request for reasonable accommodation
of his disability in February 2016. In March 2016, Leishman, an openly gay man, also
filed a complaint with the AGO, alleging that his supervisor, Kerena Higgins, made
homophobic comments towards him. Leishman felt that his PTSD was triggered by
Higgins’s comments and her micromanagement of his work. During a meeting with
Higgins to discuss Leishman’s disability accommodation and Higgins’s comments,
Leishman became aggressive, raised his voice, and pounded his fists.2
Higgins complained to the AGO about Leishman’s inappropriate conduct and the
AGO placed Leishman on home assignment. The AGO retained 0MW to conduct an
independent investigation into Leishman’s sexual orientation discrimination claim
against Higgins, and Higgins’s allegation that Leishman was inappropriate during their
meeting.
0MW drafted a report (0MW Report) concluding that “Leishman has not
established support for his complaint of discrimination against him based on sexual
orientation as prohibited by AGO polices.” The 0MW Report also concluded that “Mr.
Leishman’s conduct during the March 1 meeting [with Higgins] violated expected
standards of conduct for his position as reflected in his job description.” The AGO
terminated Leishman on May 7, 2016.
After his termination, Leishman submitted a tort claim against the State for
employment-related claims, and the parties reached a settlement. In the settlement
2 We take the facts alleged by Leishman as true for purposes of our review of OMW’s motion to
dismiss. Becker v. Cmty. Health Sys., Inc., 184 Wash. 2d 252, 257-58, 359 P.3d 746 (2015).
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No. 77754-8-1/4
agreement, Leishman ‘released his claims against the State, including the AGO, and
any officers, agents, employees, agencies, or departments of the State of Washington.”
Subsequently, Leishman sued 0MW for negligence, violation of the CPA,
negligent misrepresentation, fraud, and discrimination. In Leishman’s complaint, he
alleged that 0MW was not acting as the AGO’s agent and therefore his claims against
0MW were not barred by his settlement agreement with the AGO.
0MW filed a motion for judgment on the pleadings, under CR 12(c), on the basis
that RCW 4.24.510 granted it immunity for its communication of the 0MW Report to the
AGO. Leishman responded that “no Washington decision discusses the potential
applicability of RCW 4.24.510 to ordinary vendor-customer communications where the
customer happens to be a government agency.”3
The trial court granted OMW’s motion for judgment on the pleadings and
subsequently entered an order for attorney fees and costs pursuant to RCW 4.24.510.
Leishman appeals.
RCW 4.24.510 provides immunity from civil liability for a “person” that
communicates a complaint of information to a federal, state, or local agency, regarding
a matter of reasonable concern to the agency.4 Leishman contends that RCW 4.24.510
~ The parties only addressed whether RCW 4.24.510 required dismissal of Leishman’s complaint,
and did not address whether 0MW was an agent of the AGO and therefore barred under the settlement
agreement.
~ RCW4.24.510 states:
A person who communicates a complaint or information to any branch or agency of
federal, state, or local government, or to any self-regulatory organization that regulates
persons involved in the securities or futures business and that has been delegated
authority by a federal, state, or local government agency and is subject to oversight by
the delegating agency, is immune from civil liability for claims based upon the
communication to the agency or organization regarding any matter reasonably of concern
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No. 77754-8-1/5
was intended to protect private citizen whistleblowers and not immunize government
contractors from civil liability for work done on behalf of the government. We agree.
A.
We review a trial court’s judgment on the pleadings de novo. Pasado’s Safe
Haven v. State, 162 Wash. App. 746, 752, 259 P.3d 280 (2011). As part of our review,
“we examine the pleadings to determine whether the claimant can prove any set of
facts, consistent with the complaint, which would entitle the claimant to relief.” Pasado’s
Safe Haven, 162 Wash. App. at 752. “The factual allegations in the complaint are
accepted as true.” Nw. Animal Rights Network v. State, 158 Wash. App. 237, 241, 242
P.3d 891 (2010).
The interpretation of the language in RCW4.24.510 presents an issue of
statutory interpretation, which is also reviewed de novo. Jametsky v. Olsen, 179 Wash. 2d
756, 761-62, 317 P.3d 1003 (2014). The goal of statutory interpretation is to “ascertain
and carry out the legislature’s intent.” Jametsky, 179 Wash. 2d at 762. We give effect to
the plain meaning of the statute, “derived from the context of the entire act as well as
any related statutes which disclose legislative intent about the provision in question.”
Jametsky, 179 Wash. 2d at 762 (internal quotations omitted). If the statute’s language is
unambiguous, then the inquiry ends. Jametsky, 179 Wash. 2d at 762. If, however, the
language is subject to more than one reasonable interpretation, we “may resort to
to that agency or organization. A person prevailing upon the defense provided for in this
section is entitled to recover expenses and reasonable attorneys’ fees incurred in
establishing the defense and in addition shall receive statutory damages of ten thousand
dollars. Statutory damages may be denied if the court finds that the complaint or
information was communicated in bad faith.
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No. 77754-8-116
statutory construction, legislative history, and relevant case law for assistance in
discerning legislative intent.” Jametsky, 179 Wash. 2d at 762.
B.
Our decision turns on whether the term “person” in RCW 4.24.510 extends
immunity to government contractors working within the scope of their contract, such as
0MW. Our Supreme Court addressed the meaning of “person” in the plurality decision
Seqaline. After concluding that the term “person” is ambiguous, the four justice lead
opinion authored by Justice Sanders, and a concurrence by Justice Madsen, agreed
that a government agency is not a “person” under RCW 4.24.510. The lead opinion and
concurrence, disagreed on the underlying reasoning. Compare k1. at 472-74 with k~. at
479-83.
In Seqaline, an employee at the Washington State Department of Labor and
Industries (L&l) called the police when Segaline, an electrical contractor, harassed L&I
employees when applying for electrical permits. Seqaline, 169 Wash. 2d at 471.
Eventually, Segaline was arrested. Segaline sued L&I claiming negligent infliction of
emotional distress, intentional infliction of emotional distress, malicious prosecution,
negligent supervision, and violation of his civil rights. k~. at 472. L&I claimed immunity
under RCW 4.24.5 10, arguing its communication to the police was protected. k~. at
472-73. The plurality in Seqaline found that L&l, a government agency, was not a
“person” within the meaning of RCW4.24.510. Seqaline, 169 Wash. 2d at 474-75.
Because Seqaline only addressed government agency to government agency
communication, it is not dispositive on whether a government contractor performing
services for a government agency is a “person” under RCW 4.24.510. The question
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No. 77754-8-1/7
before us, therefore, is if a government agency is not a “person” afforded immunity
under RCW 4.24.510 for its communications to another government agency, is a
government contractor performing work on behalf of an agency a ‘person,” and
therefore immune from civil liability for its communications to a government agency?
The reasoning of the Seqaline plurality, along with the legislative intent behind RCW
4.24.510, support the conclusion that a government contractor is not immune from
liability for providing paid communications to a government agency.
The Seqaline lead opinion reasoned that a government agency is not a “person”
under RCW 4.24.510 because “[t]he purpose of the statute is to protect the exercise of
individuals’ First Amendment rights under the United States Constitution and rights
under article I, section 5 of the Washington State Constitution” and should not extend to
government agencies, which do not have First Amendment rights to protect. Seqaline,
169 Wash. 2d at 473 (citing RCW 4.24.510, Historical and Statutory Notes).
Justice Madsen agreed that the legislature, in adopting RCW4.24.510,
“expressly recognized the constitutional threat that SLAPP litigation poses.” j4~ at 480.
Justice Madsen, however, was not convinced that a “person’s” free speech rights “is
dispositive of the question whether a government agency is a ‘person’ qualifying for
RCW 4.24.51 0’s immunity from civil liability.” Seqaline, 169 Wash. 2d at 482. The crux of
the issue for Justice Madsen was the purpose of the statute—removing “the threat and
burden of civil litigation” that could deter a speaker from communicating to the
government. Seqaline, 169 Wash. 2d at 482. Justice Madsen concluded that the threat of
litigation did not affect government agencies the same as it did individuals. Segaline,
169 Wash. 2d at 482.
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No. 77754-8-118
Justice Madsen compared ROW 4.24.510 with Massachusetts’s similar SLAPP
law that the Massachusetts Supreme Court held was limited to defendants that petition
the government on their own behalf. Seqaline, 169 Wash. 2d at 482-83 (citing Korbin v.
Gastfriend, 433 Mass. 327, 332, 821 N.E.2d 60 (2005)). The facts in Korbin are similar
to the facts here—a government agency hired a government contractor to conduct an
investigation into a licensed psychiatrist. Korbin, 443 Mass. at 329. As a result of the
investigation, the government agency suspended the psychiatrist’s license. ki. at 329.
The psychiatrist sued the investigator under various tort theories and the Korbin court
grappled with whether the Massachusetts’s anti-SLAPP statute barred the psychiatrist’s
claims. ki. at 332. The Korbin court found that the anti-SLAPP statute did not bar the
psychiatrist’s claims because neither the statute nor the legislative history “suggests any
intention to protect a government-retained investigator acting on behalf of an
administrative agency.” ki. at 337. Furthermore, “the board contracted with the
defendant to engage in investigative activities in aid of the board’s case against the
plaintiff, and he was compensated for his services.” j.~ at 337.
Justice Madsen’s concurrence extended the reasoning of Korbin to find that
ROW 4.24.510 should not protect a government agency’s communication with another
government agency from civil liability. Justice Madsen explained:
Moreover, insofar as ROW 4.24.510 does encompass petitioning the
government to influence decision-making and has as an express purpose
the protection of this right, it is similar to the Massachusetts SLAPP law
that, the Massachusetts Supreme Court said, is limited to “those
defendants who petition the government on their own behalf. In other
words, the statute is designed to protect overtures to the government by
parties petitioning in their status as citizens,” and therefore it did not apply
to the communications of one hired by a government agency made within
the context of that employment.
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No. 77754-8-1/9
ki. at 482-83.
Justice Madsen’s concurrence also finds support in the legislative intent. The
legislative intent behind RCW4.24.510 is explained in both RCW4.24.500 and the
Historical and Statutory Notes to RCW 4.24.510. In RCW 4.24.500, the legislature
explained:
Information provided by citizens concerning potential wrongdoing is vital to
law enforcement and efficient operation of government. The legislature
finds that the threat of a civil action for damages can act as a deterrent to
citizens who wish to report information to federal, state, or local agencies.
The costs of defending against such suits can be severely burdensome.
The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals
who make good-faith reports to appropriate government bodies.
Further, when the legislature amended RCW4.24.510 to remove a “good faith”
requirement, the legislature added a detailed statement explaining the intent of ROW
4.25.510:
Strategic lawsuits against public participation, or SLAPP suits,
involve communications made to influence a government action or
outcome which results in a civil complaint or counterclaim filed against
individuals or organizations on a substantive issue of some public interest
or social significance. SLAPP suits are designed to intimidate the
exercise of First Amendment rights and rights under Article I, section 5 of
the Washington state Constitution.
Although Washington State adopted the first modern anti-SLAPP
law in 1989, that law has, in practice, failed to set forth clear rules for early
dismissal review. Since that time, the United States Supreme Court has
made it clear that, as long as the petitioning is aimed at procuring
favorable government action, result, product, or outcome, it is protected
and the case should be dismissed. Chapter 232, Laws of 2002 amends
Washington law to bring it in line with these court decisions which
recognizes that the United States Constitution protects advocacy to
government, regardless of content or motive, so long as it is designed to
have some effect on government decision making.
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No. 77754-8-1/10
LAWS OF 2002, ch. 232, § 2. This legislative intent makes clear that RCW 4.24.510 was
meant to protect a citizen’s right to advocate to government agencies and public
participation in governance.
The same reasons that underlie the Seqaline plurality apply to government
contractors in this case. The Seqaline lead opinion concluded that government
agencies are not immune under RCW 4.25.510 because they are not exercising First
Amendment rights. When government contractors are communicating, for the purpose
of carrying out their duties under a contract with a government agency, they are
similarly not exercising First Amendment rights. If we were to find otherwise, then a
government agency could escape the constraints of RCW 4.25.510, as dictated in
Segaline, by engaging contractors to carry out government functions.
As Justice Madsen’s concurrence and the legislative intent make clear, RCW
4.24.510 was meant to protect a citizen’s right to advocate to government agencies and
public participation in governance. Insulating government contractors from civil liability
for injury caused by their contracted submissions to government agencies does not
meet the intent behind RCW 4.24.510. When a government contractor is hired to
conduct an internal investigation and report its findings to the government agency, it is
not exercising its right to petition the government on its own behalf, advocating to
government, or attempting to have effect on government decision making. Instead, the
government contractor is performing the work of a government agency. The contractor
benefits from being paid for its services and any communication to the government
agency as a result of the services rendered is not the type of communication that RCW
4.24.510 was intended to protect.
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No. 77754-8-Ill 1
We hold that government contractors, when communicating to a government
agency under the scope of their contract, are not “persons” entitled to protection under
RCW 4.24.510.
We reverse both the judgment on the pleadings and the award of attorney fees to
0MW and remand for proceedings consistent with this opinion.5
WE CONCUR:
~ Because the issue was not raised below or before us on appeal, we specifically do not address
whether 0MW was an agent” of L&l and thus whether Leishman is precluded from seeking relief under
the terms of the settlement agreement.
—11—