Donna Zink, et ux v. City of Mesa

Opinion

FILED AUGUST 20, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

DONNA ZINK and JEFF ZINK, wife and ) No. 39670-3-III husband, and the marital community ) composed thereof, ) ) ORDER DENYING MOTION Appellants, ) FOR RECONSIDERATION AND ) WITHDRAWING OPINION FILED v. ) APRIL 30, 2024. ) CITY OF MESA, a Washington ) Municipal Corporation; DUANA RAE ) ROSS, a married woman; PATRICK ) FAY, a married man; DAVID ) FERGUSON, a married man; ) ELIZABETH DAVIS, a married woman; ) FRANKLIN COUNTY, a Washington ) Municipal Corporation; RICHARD ) LATHIM, in his capacity as Franklin ) County Sheriff; RUBEN BAYONA, an ) individual; FRANKLIN COUNTY ) SHERIFF’S DEPUTY SCANTLIN, an ) individual; and BRIAN PFEIFFER, an ) individual, ) ) Respondents. )

THE COURT has considered appellant’s motion for reconsideration and motion to

publish opinion and is of the opinion the motions should be denied. Therefore,

IT IS ORDERED, the motion for reconsideration and the motion to publish

opinion of this court’s decision of April 30, 2024, is hereby denied. No. 39670-3-III Order Page 2

IT IS FURTHER ORDERED the opinion filed April 30, 2024, is withdrawn and a

new opinion will be filed this day.

PANEL: Judges Staab, Lawrence-Berrey, Pennell

FOR THE COURT:

___________________________________ Robert Lawrence-Berrey Chief Judge FILED AUGUST 20, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

DONNA ZINK and JEFF ZINK, wife and ) husband, and the marital community ) No. 39670-3-III composed thereof, ) ) Appellants, ) ) v. ) UNPUBLISHED OPINION ) CITY OF MESA, a Washington ) Municipal Corporation; DUANA RAE ) ROSS, a married woman; PATRICK ) FAY, a married man; DAVID ) FERGUSON, a married man; ) ELIZABETH DAVIS, a married woman; ) FRANKLIN COUNTY, a Washington ) Municipal Corporation; RICHARD ) LATHIM, in his capacity as Franklin ) County Sheriff; RUBEN BAYONA, an ) individual; FRANKLIN COUNTY ) SHERIFF’S DEPUTY SCANTLIN, an ) individual; and BRIAN PFEIFFER, an ) individual, ) ) Respondents. )

STAAB, J. — Donna Zink appeals the trial court’s summary judgment dismissal of

her tort claims for false arrest, false imprisonment, and malicious prosecution, as well as

claims for violating her Fourteenth Amendment rights brought under 42 U.S.C. § 1983

for violation of her right to video record a public meeting under the Open Public No. 39670-3-III Zink, et al v. Scantlin, et al

Meetings Act of 1971 (OPMA), chapter 42.30 RCW. She argues that the city of Mesa

(City) and its former Mayor Duana Ross are not entitled to qualified immunity, and

therefore summary judgment should not have been granted.

We agree that the City, as a governmental entity, is not entitled to qualified

immunity. However, we conclude that the right to video record a public meeting was not

clearly established in 2003 and therefore Mayor Ross is entitled to qualified immunity.

Accordingly, we affirm the dismissal of Zink’s claims against Mayor Ross and reverse

the summary judgment order dismissing Zink’s claims against the city of Mesa. We

remand for further proceedings.

BACKGROUND

This court has already provided a detailed account of the background facts of this

case in Zink v. City of Mesa, 17 Wn. App. 2d 701, 487 P.3d 902 (2021) (published

portion); Zink, No. 36994-3-III (unpublished portion), https://www.courts.wa.gov

/opinions/pdf/369943_ord.pdf. Unless otherwise noted, the facts set forth are from this

court’s opinion in that case.

The city of Mesa is a noncharter code city, with a mayor and city council

organized under chapter 35A.12 RCW. As a noncharter code city, the city council is the

governing body of Mesa. Former RCW 35A.12.010 (1997). The mayor serves as

presiding officer for the city council, having a vote only in case of a tie concerning

2 No. 39670-3-III Zink, et al v. Scantlin, et al

certain matters. Former RCW 35A.12.100 (1979). In 2003, the Mesa City Council

consisted of five members. The mayor was Duana Ross.

The Mesa City Council had a meeting scheduled to commence on May 8, 2003.

Zink appeared for the May 8 city council meeting and began video recording a few

minutes before the start of the meeting.

Shortly after Zink began recording, Mayor Ross told Zink she needed permission

to tape the proceedings. Zink asked what law required such permission. Zink refused to

turn the camera off and told Mayor Ross she could call the police.

Mayor Ross then called 911. A sheriff’s deputy arrived and talked to Zink. Zink

informed the officer she had a right to record the meeting as it was a public meeting and

she was not causing a disturbance. After some discussion between the city council, Zink,

and the deputy, the deputy claimed Zink was trespassing and would be arrested if she did

not either leave or stop recording. Zink did not stop recording. Zink was then

handcuffed, transported to jail, given a citation, and released. After Zink’s removal, the

council resumed its meeting and conducted business on its agenda.

In 2005, Zink sued the city of Mesa, Mayor Ross (collectively Mesa), the three

city council members present that night, Franklin County, the Franklin County Sheriff’s

Office, the elected sheriff, and the involved deputies. Zink made claims regarding

violations of the OPMA as well as civil rights and emotional distress claims regarding

Zink’s exclusion from the meeting and arrest.

3 No. 39670-3-III Zink, et al v. Scantlin, et al

In pretrial rulings and negotiations, all of Zink’s claims except the OPMA claim

and a tort claim under § 1983 for deprivation of liberty without due process were

disposed of.

A jury trial was held in January 2018. In the middle of trial, the City filed a

motion for directed verdict on the § 1983 claims, which the court granted based on the

view that a violation of a nonfederal statute cannot form the basis of a § 1983 claim

unless the statute purports to grant a property right and the OPMA does not grant a

property right.

In her first appeal, Zink raised several issues including the trial court’s directed

verdict on her § 1983 claims. This court reversed the directed verdict for Mayor Ross

and the City on the Fourteenth Amendment § 1983 claims and the directed verdict for

Mayor Ross on the Fourth Amendment § 1983 claims, disagreeing with the trial court’s

analysis and determining that the OPMA grants a right to attend a public meeting that can

give rise to a claim under § 1983. This court affirmed the directed verdict for the City on

the Fourth Amendment § 1983 claims, determining that there was no evidence Zink had

been arrested pursuant to an official city policy or custom. This court declined to address

any argument surrounding the issue of qualified immunity as the trial court expressly

declined to reach the issue and the City had failed to adequately brief it on appeal.

On remand, the City and Mayor Ross brought a motion for summary judgment on

the remaining claims, arguing that it was immune from suit based on the doctrine of

4 No. 39670-3-III Zink, et al v. Scantlin, et al

qualified immunity. The motion argued that the right to video record the city council

meeting was not clearly established on May 8, 2003, such that it would have been known

by every reasonable official. The trial court granted the motion and accordingly

dismissed the all of Zink’s claims against Mayor Ross and the City.1

Zink appeals.

ANALYSIS

1. QUALIFIED IMMUNITY FOR THE CITY OF MESA

Zink argues that the trial court erred in determining that the City was entitled to

qualified immunity and therefore dismissed her claims against the City. She maintains

that municipalities are not entitled to qualified immunity. The City responds that the

superior court’s prior dismissal of all of Zink’s claims against the City was affirmed in

this court’s prior opinion.

We reject the City’s argument that this court dismissed all of Zink’s claims against

the City in a prior appeal. Although this court affirmed the dismissal of the Fourth

Amendment claim brought under § 1983, with regard to the Fourteenth Amendment

claim brought under § 1983, this court clearly stated that Zink “asserted sufficient facts

for municipal liability” and “reversed [the trial court’s directed verdict] as

1 Although the trial court initially appeared to say it was not going to include the City in its dismissal, it ultimately determined that it would dismiss both Mayor Ross and the City.

5 No. 39670-3-III Zink, et al v. Scantlin, et al

to Mayor Ross and the city of Mesa.” Zink, No. 36994-3-III, slip op. at 22-23 (emphasis

added). Additionally, this court reversed summary judgment of Zink’s tort claims for

false arrest, false imprisonment, and malicious prosecution. Zink, No. 36994-3-III, slip

op. at 32-33.

On remand, the trial court erred in concluding that the City was entitled to assert

the defense of qualified immunity and dismissing Zink’s claims against the City.

Although government officials may be entitled to qualified immunity in their individual

capacity, “[l]ocal government entities are not entitled to the qualified immunity available

to their officials.” Robinson v. City of Seattle, 119 Wn.2d 34, 64, 830 P.2d 318 (1992),

abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694

(2019). The trial court initially hesitated to extend its summary judgment dismissal on

the basis of qualified immunity to the City, noting that the issue of whether the City was

entitled to qualified immunity had not been briefed. However, in the end, it decided to

include the City in its decision. This decision was in error.

2. QUALIFIED IMMUNITY OF MAYOR ROSS

Zink argues that the trial court also erred in dismissing her § 1983 claims against

Mayor Ross. She maintains that in 2003 her right to video record city council meetings

was clearly established and therefore Mayor Ross is not entitled to qualified immunity.

We disagree.

6 No. 39670-3-III Zink, et al v. Scantlin, et al

A government official’s entitlement to qualified immunity is a question of law this

court reviews de novo. Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 538, 267

P.3d 1022 (2011). “Qualified immunity is a potentially dispositive predicate inquiry,

‘conceptually distinct from the merits of the plaintiff’s claim,’ where summary judgment

is appropriate if the evidence is insufficient to create a genuine issue of material fact

regarding whether the defendant committed acts that violated clearly established law.”

Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S. Ct. 2806, 86 L. Ed. 2d 411

(1985)).

A party is entitled to relief under § 1983 if they can demonstrate: (1) deprivation

of a federal constitutional or statutory right, and (2) the individual against whom the

claim is brought was acting under color of state law. Sintra, Inc. v. City of Seattle, 119

Wn.2d 1, 11, 829 P.2d 765 (1992), abrogated on other grounds by Yim, 194 Wn.2d 682.

However, public officials may raise the defense of qualified immunity to limit their

liability for damages under § 1983. Benjamin v. Wash. State Bar Ass’n, 138 Wn.2d 506,

527, 980 P.2d 742 (1999). The doctrine of qualified immunity shields government

officials from liability unless a plaintiff can demonstrate that the official: (1) violated a

constitutional right, and (2) that right was clearly established at the time the challenged

conduct occurred. Robinson, 119 Wn.2d at 64-65. Whether a right is clearly established

is an objective standard, not a subjective one, and “turns on whether a governmental

7 No. 39670-3-III Zink, et al v. Scantlin, et al

official’s conduct was objectively reasonable based on clearly established law.” Zink,

No. 36994-3-III, slip op. at 29.

Under the OPMA, “all meetings of the governing body of a public agency shall be

open and public and all persons shall be permitted to attend any meeting of the governing

body of a public agency, except as otherwise provided in this chapter.” RCW

42.30.030(1). In 2021, this court determined that a core protection of the OPMA “is that

an individual’s right to attend a public meeting cannot be restricted to fulfilment of a

‘condition precedent.’” Zink, 17 Wn. App. 2d at 709 (quoting RCW 42.30.040). In

doing so, this court cited to a 1998 attorney general opinion, which concluded that this

provision precludes the banning of video or audio recording devices in meetings required

to be open to the public under the OPMA unless it is necessary to preserve order. Zink,

17 Wn. App. 2d at 710.

Zink claims that, in light of the 1998 attorney general opinion, her right to video

record the city council meeting was clearly established on May 8, 2003, when she was

arrested for doing so. Although this court is not bound by the opinions of the attorney

general, they are generally given significant weight. Five Corners Family Farmers v.

State, 173 Wn.2d 296, 308, 268 P.3d 892 (2011). Since the issuance of the attorney

general opinion, this court has confirmed, in a prior appeal of Zink’s case, that this

provision of the OPMA protects, among other things, an individual’s right to video

record public meetings in a nondisruptive manner because any restrictions on individual’s

8 No. 39670-3-III Zink, et al v. Scantlin, et al

video recording a public meeting would constitute conditions precedent. See Zink, 17

Wn. App. 2d at 710-11. Arguably, our prior Zink decision clearly established that an

individual has a right to video record a city council meeting.2

However, the question is not whether the right is clearly established now, but

whether it was clearly established in 2003. A right is clearly established if it can be

shown that “‘at the time of the challenged conduct, [t]he contours of [a] right [were]

sufficiently clear that every reasonable official would have understood that what he [was]

doing violates that right.’” Feis, 165 Wn. App. at 538 (some alterations in original)

(internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131

S. Ct. 2074, 179 L. Ed. 2d 1149 (2011)). Qualified immunity offers protections in cases

involving “‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of

law and fact.’” Id. at 539 (internal quotation marks omitted) (quoting Pearson v.

Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)). “Hence,

qualified immunity protects ‘all but the plainly incompetent’ and ‘those who knowingly

violate the law.’” Id. (internal quotation marks omitted) (quoting al-Kidd, 563 U.S. at

743).

2 We leave for another day whether one decision that does not bind other divisions or even our own court can clearly establish a right. State v. Smith, 17 Wn. App. 2d 146, 152, 484 P.3d 550 (2021) (“We give respectful consideration to the decisions of other divisions of the Court of Appeals, but we are not bound by those decisions. And we are not even bound by decisions by different panels within our own division.”) (citation omitted).

9 No. 39670-3-III Zink, et al v. Scantlin, et al

Although the attorney general opinion Zink relies on would have been given

significant weight in 2003, it was not binding on this court. As it was not binding, it

cannot be said that on its own, it clearly established Zink’s right to video record the city

council meeting. And although this court has held that the OPMA does protect an

individual’s right to video record a public meeting, this determination was post-2003 and

actually resulted from the litigation in the present case. Moreover, the right to video

record is only generally established by RCW 42.30.040’s prohibition on conditions

precedent. The provision contains no statements regarding any right to record a public

meeting, and thus the contours of the right to video record were not sufficiently clear that

every reasonable official would have understood that Mayor Ross’s conduct violated that

right.

The right to video-record public meetings in 2003 was not a “sufficiently

particularized statutory or constitutional right” but rather appears to fall into the class of

“extremely abstract rights.” Id. at 541 (quoting Anderson v. Creighton, 483 U.S. 635,

639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). Imposing liability, in situations such as

these, where the contours of a right are unclear, risks resulting in situations where public

officials do not have “fair warning of when their conduct may give rise to liability.” Id.

We conclude that the right to video-record public meetings was not clearly established in

2003. Thus, the trial court did not err in dismissing Zink’s § 1983 claims against Mayor

Ross because Mayor Ross is entitled to qualified immunity.

10 No. 39670-3-III Zink, et al v. Scantlin, et al

We affirm the trial court’s dismissal of Zink’s claims against Mayor Ross. We

reverse the trial court’s dismissal of Zink’s claims for false arrest, false imprisonment,

and malicious prosecution as well as her Fourteenth Amendment § 1983 claims against

the City and remand for further proceedings.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________ Staab, J.

WE CONCUR:

_________________________________ Lawrence-Berrey, C.J.

_________________________________ Pennell, J.