R.L. McFarland v. Gregory A. Tompkins

567 P.3d 1128

• Court: Court of Appeals of Washington
• Decided: April 24, 2025
• Docket: 40158-8
• Status: Published

Opinion

FILED APRIL 24, 2025 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

R.L. MCFARLAND, an individual, ) No. 40158-8-III ) Appellant, ) ) v. ) ) GREGORY A. TOMPKINS, an individual ) and member of the Walla Walla County ) Board of Commissioners, TODD L. ) PUBLISHED OPINION KIMBALL, an individual and member of ) the Walla Walla County Board of ) Commissioners, and JENNIFER R. ) MAYBERRY, an individual, and member ) Walla Walla County Board of ) Commissioners and COUNTY OF ) WALLA WALLA, STATE OF ) WASHINGTON, a municipal corporation. ) ) Respondents. )

FEARING, J. — This appeal poses many interesting questions attended to

Washington’s Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, one of

Washington’s sunshine laws. The questions cover the subjects of standing, mootness,

proper parties, laches, notice given for a government body special meeting, remedies,

nullification of government action, and personal liability of members of the governing

body. Two difficult questions are: (1) does a citizen possess standing, under

RCW 42.30.060 and .080, to void action taken by the board of a government body in

violation of the OPMA, and (2) whether and how a plaintiff, under RCW 42.30.120, No. 40158-8-III McFarland v. Tompkins

may defeat a summary judgment motion brought by board members to dismiss the claim

of individual liability when the members deny knowledge of a violation of the OPMA.

The many issues raised by the parties prolong this opinion.

R.L. McFarland sued Walla Walla County and individual Walla Walla County

Board of Commissioners (WWBOC or the Board) members for an alleged failure to give

advance notice of possible action taken during a special board meeting on January 7,

2021. The superior court held, in response to cross motions for summary judgment, that

the county violated the OPMA. The superior court, however, granted summary judgment

dismissal of McFarland’s lawsuit against both Walla Walla County and board members

because McFarland lacked standing to sue the county, the county is not a proper party,

the suit is moot, McFarland unreasonably delayed filing suit, and the three members of

the WWBOC averred that they lacked actual knowledge of violating the act, a

prerequisite to personal liability. We reverse the superior court and remand the claims

against both the county and the board members.

In briefing, the parties implicitly advocate their respective political and scientific

positions regarding the COVID-19 contagion and government restrictions taken in

response to the pandemic. R.L. McFarland perceived the pandemic as an acute and

abundant danger to community health, and he supported measures taken by Governor Jay

Inslee to combat the pandemic. The three WWBOC members may have recognized

COVID-19 as real and needful of government measures to prevent the virus’ spread, but

2 No. 40158-8-III McFarland v. Tompkins

the board members objected to measures ordered by Governor Inslee, particularly orders

that treated Walla Walla County the same as more populous counties. As a result, the

WWBOC approved at a special meeting a letter to Governor Inslee and state legislators

advocating for restraints on the governor’s powers. As will be explained further in our

analysis of mootness of the appeal, we do not consider this appeal to concern the validity

or utility of government programs addressing the COVID-19 pandemic. We would issue

the same ruling, based on the OPMA, if the WWBOC had written letters to the

Washington governor and to state legislators that advocated for and praised the measures

taken by the governor.

FACTS

In January 2021, a three-member board of county commissioners governed Walla

Walla County. The three members were Greg Tompkins, Todd Kimball, and Jennifer

Mayberry. Tompkins served as chairman of the board. Appellant R.L. McFarland

resides in Walla Walla County.

Walla Walla County, named for the Walla Walla tribe of Native Americans, lies

on the western edge of fecund Palouse country in southeast Washington, with Benton

County to the west, Franklin County to the northwest, Colombia County to the east, and

Whitman County to the northeast. The Snake River forms most of the boundary with

Franklin County. The winding river empties into the Columbia River at the northwest

corner of Walla Walla County. The mighty Columbia River flows on the west end of the

3 No. 40158-8-III McFarland v. Tompkins

county and forms the boundary with Benton County. The southern boundary of the

county is the state of Oregon. The foothills of the Blue Mountains form in the southeast

corner of Walla Walla County.

The city of Walla Walla is Walla Walla County’s seat and largest city. The county

contains 1,299 square miles, and its population numbered 62,584 in 2020. Walla Walla

County markets high-end wines. The county houses two premier higher education

institutions, Walla Walla University and Whitman College. The county is affectionately

known worldwide for its redundant name that alliterates with Washington and for sweet

onions.

OPMA requires that members of a governing body of a public agency, including

county commissioners, undergo training to ensure compliance with the demands of the

OPMA. Discovery in this suit disclosed that each individual WWBOC member

underwent formal training on the act before 2021. The training included the act’s

requirements for notice given for special board meetings.

In opposition to COVID-19 pandemic restrictions imposed by Washington

Governor Jay Inslee, the group We of Liberty lobbied for legislation limiting the power

of the governor. WWBOC Chairman Gregory Tompkins received an e-mail from We of

Liberty enlisting a letter of support for the group’s efforts. Chairman Tompkins

discussed authoring a letter of support during the WWBOC’s regularly scheduled

meeting on January 4, 2021:

4 No. 40158-8-III McFarland v. Tompkins

CHAIRMAN TOMPKINS: I received an e-mail from Liberty. . . .. [T]hey are hosting a . . . rally in Olympia next week, or the 10th . . . . to discuss some of the powers of the governor and also the vaccination, that would prohibit the discrimination of individuals who choose not to receive the COVID-19 vaccine, and then the other one is to limit the governor without legislative authority to just impose these types of restrictions. I don’t know if you—if you’ve seen it, Commissioner Kimball. I know that Commissioner Mayberry has not, unless Diane forwarded it to her. . . . . But they’re looking for a support letter, you know, to send to our Reps [state legislators]. . . . I, personally, think that it’s not a bad thing for us to do, you know, that there should be some additional conversation if a pandemic like this ever came to fruition again. So I’m just looking for your thoughts, see if we have consensus to draft a letter and send it to our legislators supporting their actions. COMMISSIONER KIMBALL: Yeah, I have that letter . . . and I do support . . . what they’re recommending. I just think the power of one person to be able to do what he’s been doing for the last nine months without any oversight of any kind is a little too much power in the hands of one person. So I support writing a letter so we can get some legislation and that let’s our legislators have some say in this. So I’m fine with drafting a letter. CHAIRMAN TOMPKINS: Okay. Commissioner Mayberry, any thoughts? COMMISSIONER MAYBERRY: I’m a hundred percent for it, so— CHAIRMAN TOMPKINS: So in the e-mail, they were only talking about individual’s rights not to get it, but I think they need to include businesses, you know, to not require employees to get it, if they so choose not to, and that should be a business decision by an employer. So I’d like to add that to that letter. COMMISSIONER KIMBALL: I’m fine with that. COMMISSIONER MAYBERRY: I agree. CHAIRMAN TOMPKINS: Okay. All right.

Clerk’s Papers (CP) at 93-94. The superior court found that, based on this discussion, the

WWBOC had “agreed” to send a letter.

5 No. 40158-8-III McFarland v. Tompkins

On January 5, 2021, Governor Jay Inslee unveiled “Healthy Washington —

Roadmap to Recovery,” a phased COVID-19 recovery plan restricting retail, religious,

personal, and professional services to 25 percent capacity. The plan limited outdoor

entertainment venues, including zoos and concert spaces, to ten persons. The plan

mandated facial coverings and physical distancing.

On January 5, 2021, the WWBOC posted notice of a special Thursday, January 7,

2021, board meeting with the following succinct agenda:

a) Roll call and establish a quorum b) Pledge of Allegiance c) Executive session: re: litigation or potential litigation (pursuant to RCW 42.30.110(i)) d) Miscellaneous business to come before the Board.

CP at 122. According to Walla Walla County, the WWBOC sought guidance from legal

counsel for potential responses to the emergent unveiling of the governor’s roadmap.

The WWBOC sent the special meeting notice to R.L. McFarland.

On January 6, 2021, R.L. McFarland e-mailed Diane Harris, WWBOC clerk,

seeking to clarify if the board would discuss, at the scheduled special meeting, the

proposed letters discussed during the January 4 regular meeting, under the agenda item

“Miscellaneous business to come before the Board.” CP at 126. The e-mail noted that

Thursday meetings were “normally reserved for ‘Executive Session’ topics.” CP at 132.

Harris responded that she did not know the topic for discussion under the agenda item of

miscellaneous business.

6 No. 40158-8-III McFarland v. Tompkins

Walla Walla County writes in its brief that Clerk Diane Harris’s response to R.L.

McFarland’s e-mail, which response mentioned a lack of knowledge of the topic for

miscellaneous business, confirms that the WWBOC lacked any preexisting plan to

address, at the January 7 special meeting, the topic of a letter supporting We of Liberty.

The citations to the clerk’s papers, given by Walla Walla County, do not confirm the

county’s factual assertion.

Later on January 6, 2021, WWBOC Chairman Gregory A. Tompkins replied to

R.L. McFarland’s January 5 e-mail:

I think there is a misnomer and more likely a communication error on my part when explaining intent of the letter going to our State legislators and others. There is no intent on behalf of the Board of County Commissioners (BOCC) to write a letter supporting someone else’s agenda or protest. The letter is to let the legislature and others know that we are watching and that people’s Civil liberties are being trampled on which flies in the face of what this county was founded on and what the ACLU so strongly represents. “Know your rights—Everyone has basic rights under the U.S. Constitution and civil rights laws.” The BBOC is simply requesting the legislature pass legislation to: Limit the Governor’s powers that would require him to get legislative support when mandating restrictions and not executing decisions solely on his own. Limiting the Governor’s powers is a balance of power. This is not an extreme ask for our Legislature to pass a Bill because part of the current RCW already requires legislative support. . . . We are also asking Legislature to pass a bill prohibiting the discrimination of individuals and/or businesses who choose not to receive the Covid-19 Vaccine. As you may have seen the Governor rolled out his new plan-called Healthy Washington yesterday, placing every jurisdiction back to Phase 1. This regionalization plan was implemented with zero discussion among County/City elected officials. Local Health departments etc. . . .[sic] and

7 No. 40158-8-III McFarland v. Tompkins

will further degrade peoples[’] Civil Liberties, Mental and Physical Health, livelihoods and have permanent lasting effects that some will never recover.

CP at 128. Chairman Tompkins’ e-mail did not indicate whether or not the WWBOC

would discuss the proposed letter about COVID-19 measures during its January 7 special

meeting.

On January 7, 2021, during the special meeting, the WWBOC engaged in a

lengthy executive session that excluded attendance by the public. After returning to an

open meeting, the Board reviewed a proposed letter regarding the governor’s powers.

The WWBOC unanimously approved drafting a letter to Governor Inslee that opposed

the reopening protocols embedded in the Healthy Washington Roadmap to Recovery

plan. R.L. McFarland virtually attended the Board meeting.

Although the letter shows a date of January 7, the WWBOC sent its letter to

Washington Governor Jay Inslee on January 8, 2021. All three commission members

signed the letter. The letter emphasized the efforts already exerted by Walla Walla

County to combat the pandemic and advocated for eliminating arbitrary regional

designations. The letter lamented Walla Walla County being wedded to COVID-19 rates

suffered by larger counties, such as Yakima County, Franklin County, and Benton

County.

On January 12, 2021, the WWBOC sent letters to Senator Perry Dozier,

Representative Skyler Rude, and Representative Mark Klicker, criticizing the Roadmap

8 No. 40158-8-III McFarland v. Tompkins

to Recovery as fundamentally flawed in its design and implementation. The three

legislators then represented Walla Walla County in the state legislature. We henceforth

refer to the letter to Governor Inslee and the letter to state legislators as “the January

letters.”

Ten months later, on November 12, 2021, Michael de Grasse, legal counsel for

R.L. McFarland, sent a letter to Chief Civil Deputy Prosecuting Attorney for Walla Walla

County, Jesse Nolte. DeGrasse’s letter began a paper clash between de Grasse and Nolte

on the question of whether the WWBOC violated the OPMA when resolving to send the

letters to Governor Inslee and the Walla Walla legislative representatives. DeGrasse

emphasized that the January 7 agenda had not specified the proposed action of sending

the letter. The letter asked if the Board would rescind the resolutions approving the

sending of the January letters.

The letters and e-mail between Michael deGrasse and Jesse Nolte continued until

June 2022. Nolte’s letters denied any violation because the approval of the January

letters did not constitute an “action” under the OPMA. The content of the letters lacks

importance because we repeat later arguments asserted by both sides in the

correspondence. Nevertheless, the letters detail attempts by McFarland, through his

counsel, to resolve the dispute without litigation and, in turn, the letters may explain a

delay in filing suit. In letters, each attorney suggested the other attorney had failed to

read previous correspondence. DeGrasse sent e-mail or letters on November 12, 2021,

9 No. 40158-8-III McFarland v. Tompkins

February 24, 2022, March 4, 2022, March 18, 2022, March 31, 2022, April 14, 2022,

May 16, 2022, and June 2, 2022. Nolte sent correspondence on December 21, 2021,

February 28, 2022, March 7, 2022, March 22, 2022, April 4, 2022, and April 14, 2022.

On July 25, 2022, de Grasse mailed a copy of a complaint and summons to Nolte and

announced an intent to file suit if the Board did not resolve the dispute by Labor Day.

Greg Tompkins left office on December 31, 2022. See Hon. Cathy McMorris

Rodgers of Washington in the House of Representatives, Recognizing County

Commissioner Greg Tompkins, 168 CONG. REC. 187 (Dec. 2, 2022).

PROCEDURE

On September 23, 2022, R.L. McFarland filed suit against Walla Walla County

and Walla Walla County Commissioners Gregory Tompkins, Todd Kimball, and Jennifer

Mayberry. When referencing all defendants, we will henceforth label them as “the

defense.” The complaint alleged violations of the OPMA because the notice for the

January 7, 2021, special meeting failed to specify the business to be conducted.

McFarland argued that actions taken during the meeting jeopardized his health by

encouraging the state government to relax COVID-19 safeguards. Although McFarland

did not allege that Tompkins, Kimball, or Mayberry had constructive or actual knowledge

of any OPMA violations, the complaint sought civil penalties and attorney fees under

RCW 42.30.120. McFarland further requested nullification of the January 7 letter to

Governor Inslee and the January 12 letter to Senator Perry Dozier and Representatives

10 No. 40158-8-III McFarland v. Tompkins

Mark Klicker and Skylar Rude. McFarland deemed Walla Walla County a necessary

party because he sought a ruling declaring the January 7, 2021 decision to send the letters

void.

In its answer, the defense pled the affirmative defenses of lack of standing,

mootness, estoppel, waiver, and laches. The defense did not plead the statute of

limitations.

The parties brought cross-motions for summary judgment. In support of his

motion, R.L. McFarland filed an affidavit, in which he declared that the board members

knowingly violated the OPMA. McFarland mentioned that he contacted the WWBOC in

advance of the January 7 meeting and warned that the agenda for the special meeting did

not mention the potential for approving a letter. McFarland pledged to donate, to Walla

Walla County, any civil penalty imposed on the board members.

Board members Greg Tompkins, Todd Kimball, and Jennifer Mayberry

respectively signed declarations supporting the defense’s summary judgment motion.

Each declaration reads identically as to the board member’s state of mind on January 7,

2021:

At the time of the meeting, it was my good faith belief that the special meeting that took place on January 7, 2021, comported with the requirements of the Open Public Meetings Act. At the time of the meeting, it was my good faith belief that my actions at the special meeting that took place on January 7, 2021, comported with the requirements of the Open Public Meetings Act.

11 No. 40158-8-III McFarland v. Tompkins

CP at 359.

The superior court initially granted summary judgment in favor of R.L.

McFarland. The court ruled that R.L. McFarland had standing to sue and that the notice

for the January 7, 2021, special meeting violated the OPMA. The superior court denied

the defense’s motion, but the court reserved for a later trial the defenses of laches and

mootness and the question of whether the individual county commissioners knowingly

violated the OPMA.

The superior court thereafter granted a motion for reconsideration from the

defense. The court dismissed R.L. McFarland’s claims in their entirety with prejudice

after concluding that no genuine issues of material fact existed. In turn, the superior

court ruled that: (1) the WWBOC’s January 5 notice for the January 7, 2021 meeting

violated RCW 42.30.080 because the notice insufficiently described the business to be

transacted at the special meeting, (2) McFarland lacked standing against Walla Walla

County to pursue nullification of the decision to send the January 7 letter, (3) McFarland

had standing to sue the individual county commissioners for a civil penalty arising from a

violation of the OPMA, (4) McFarland presented no evidence that the individual

commissioners knowingly violated the OPMA during the January 7 meeting, (5)

McFarland unreasonably delayed his lawsuit and this delay materially changed the

conditions faced by the county commissioners, (6) laches barred the suit, and (7) no

justiciable controversy existed.

12 No. 40158-8-III McFarland v. Tompkins

LAW AND ANALYSIS

On appeal, R.L. McFarland assigns error to the superior court’s grant of summary

judgment to the defense and to the court’s denial of his summary judgment motion.

These assignments of error necessarily challenge the superior court’s rulings that

McFarland lacked standing to bring an OPMA claim against the county, that Walla Walla

County is not a proper defendant, that laches barred McFarland’s suit, that McFarland’s

request for relief is moot, and that, under the undisputed facts, the individual members of

the WWBOC knew not of any violation of the act. The defense does not appeal the

superior court’s ruling that Walla Walla County violated the OPMA by its Board of

Commissioners taking action during the January 7 special meeting without proper notice

in its advance agenda.

Despite the defense choosing not to appeal the superior court’s declaration of a

violation of the OPMA, we briefly review the provisions of the act. Our opinion focuses,

however, on the many procedures defense raised beginning with standing.

Standing

We surmise that the defense agrees that R.L. McFarland possesses standing to sue

the individual board members for a civil penalty as a result of an OPMA violation. The

defense instead aims its argument of lack of standing at McFarland’s request against

Walla Walla County for a declaration proclaiming the January 2021 letters null under

RCW 42.30.060 and .080. Thus, we will later entertain the appeal of the denial of the

13 No. 40158-8-III McFarland v. Tompkins

request for the civil penalty without addressing standing. We conclude, after reading

OPMA statutes, reviewing Washington decisions, recognizing the value of open

government, and acknowledging the statutory directive to liberally construe the act, R.L.

McFarland possesses standing to nullify the January letters.

A cause of action of a plaintiff who lacks standing cannot be resolved on the

merits and must fail. Trinity Universal Insurance Company of Kansas v. Ohio Casualty

Insurance Company, 176 Wn. App. 185, 199, 312 P.3d 976 (2013). Questions of

standing under Washington law begin with the statutes themselves. Grant County Fire

Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004).

We later quote sections of the OPMA that impose requirements on a public agency

board to give notice of meetings. For now, we recite sections of the act that govern who

enjoys standing for various claims under the act. We then analyze the language of these

statutes before perusing case law.

The Open Public Meetings Act declares that “the people . . . do not yield their

sovereignty,” and they “insist on remaining informed.” RCW 42.30.010. The act

instructs courts to construe its provisions liberally. RCW 42.30.910. The OPMA

demands that, with few exceptions, all meetings of the governing body of a public agency

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

body of a public agency. RCW 42.30.030. RCW 42.30.080 requires advance notice of

an agenda for a special meeting. Remedies for violation of the OPMA include

14 No. 40158-8-III McFarland v. Tompkins

mandamus or injunction as provided in RCW 42.30.130, voidance of actions as provided

in RCW 42.30.060, and recoupment of costs and reasonable attorney fees as provided in

RCW 42.30.120(4). Zink v. City of Mesa, 17 Wn. App. 2d 701, 707-08, 487 P.3d 902

(2021).

RCW 42.30.060(1), under which R.L. McFarland in part sues, declares any action,

taken at a meeting in violation of the OPMA, as not only null, but also void. The

statutory subsection reads:

No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

(Emphasis added.) Grammarians consider the two words “null” and “void” to convey

different meanings. “Null” means to annul or cancel, while “void” means invalid or

worthless. We consider the words redundant in our setting.

RCW 42.30.060(1) references no mechanism for declaring an action null or void. The

statute does not declare who possesses standing to render an action void.

Two other OPMA statutes confer standing on “any person.” First, RCW

42.30.130 declares with respect to mandamus or an injunction:

Any person may commence an action either by mandamus or injunction for the purpose of stopping violation or preventing threatened violations of this chapter by members of the governing body.

15 No. 40158-8-III McFarland v. Tompkins

R.L. McFarland did not seek a writ of mandamus or injunction. We must resolve

whether RCW 42.30.130’s bestowal of standing on “any person” suggests that the

legislature meant to deny any person standing to sue for a declaration of nullity because

RCW 42.30.060(1) lacks the phrase “any person.”

Second, RCW 42.30.120 affords “any person” the right to seek civil penalties

against a board member who knowingly violates the OPMA. The statute reads, in

relevant part:

(3) The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. . . .. (4) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorneys’ fees, incurred in connection with such legal action.

(Emphasis added.) RCW 42.30.120(3), like RCW 42.30.060(1) and unlike

RCW 42.30.130, expressly bequeaths standing on “any person” to claim the civil penalty,

again suggesting that the absence of such language in the latter statute withholds

standing, to sue to declare an action null and void, from any person, including R.L.

McFarland. Nevertheless, RCW 42.30.130 does not define “person” or expressly limit

the people eligible to bring claims under other sections of the act. West v. Seattle Port

Commission, 194 Wn. App. 821, 827, 380 P.3d 82 (2016).

RCW 42.30.120(4) inserts the phrase “any person” into the OPMA fee-shifting

provision favoring a prevailing plaintiff. The remedy applies to any person prevailing

16 No. 40158-8-III McFarland v. Tompkins

against a public agency for a violation of any section of the OPMA. RCW 42.30.060,

requiring an advance agenda for a special meeting, could be such a section. On the one

hand, RCW 42.30.060(4) may suggest that any person has standing to sue for any

violation of the chapter. On the other hand, subsection (4) might otherwise assume that

the public lacks standing for a declaration action and such member of the public will lose

and not recover attorney fees.

We turn to decisional law. In Lopp v. Peninsula School District No. 401, 90

Wn.2d 754, 757, 585 P.2d 801 (1978), the Washington State Supreme Court pronounced

that RCW 42.30.130 “allows anyone standing to challenge the validity of a governing

body’s action.” The Supreme Court did not directly address the question of standing, but

rather affirmed dismissal of the OPMA action on the defense of laches.

The only Supreme Court decision analyzing OPMA standing is Kirk v. Pierce

County Fire Protection District No. 21, 95 Wn.2d 769, 630 P.2d 930 (1981). Robert

Kirk sued under RCW 42.30.060 and .080, like R.L. McFarland, to void an agency

action. The Pierce County Fire Protection District No. 21 Board of Commissioners had

failed to provide notice of a special meeting to one of its commissioners. RCW

42.30.080 demands notice to a board member twenty-four hours in advance of the special

meeting. A board member can waive the requirement, however. At the special meeting,

the fire commissioners terminated the employment of Kirk as fire chief. The Supreme

Court ruled that only the aggrieved commissioner, who did not receive proper notice, had

17 No. 40158-8-III McFarland v. Tompkins

standing to raise the issue. Because the commissioner waived notice, the Supreme Court

reversed the superior court’s ruling in favor of Kirk.

Thirty-five years later this intermediate court decided West v. Seattle Port

Commission, 194 Wn. App. 821 (2016). Frequent government gadfly Arthur West sued

two port district commissions and their respective board members for a series of

confidential meetings that allegedly violated RCW 42.30.030’s demand that all meetings

of the governing body of a public agency be open and public and all persons shall be

permitted to attend any meeting of the governing body of a public agency. West sought a

declaratory judgment under Washington’s declaratory judgment act, chapter 7.24 RCW,

and civil penalties against board members under the OPMA. The opinion does not

disclose the nature of the declaratory order sought by West.

On the basis of Kirk v. Pierce County Fire Protection District No. 21, the superior

court ruled, in West v. Seattle Port Commission, that Arthur West lacked standing. On

appeal, West argued that, because of Washington courts’ broad interpretation of the

OPMA, he enjoyed standing as “any person” to bring an action under RCW 42.30.120

and RCW 42.30.130. This court agreed because the plain statutory language of

RCW 42.30.120 and .130 confers standing on “any person” to bring a claim for sanctions

or an injunction. The court, however, approved the confidential nature of the meetings

because a federal act directed confidential meetings on the subject of shipping.

18 No. 40158-8-III McFarland v. Tompkins

In ruling that Arthur West held standing, this court distinguished Kirk because the

Supreme Court in Kirk did not address the statutory causes of action established under

RCW 42.30.120 and .130. Robert Kirk’s suit entailed improper notice to a specific

person. Kirk did not assert that anyone, including himself, was prohibited from attending

the meeting. West’s suit involved his exclusion from a meeting.

In West v. Seattle Port Commission, this court characterized standing under the

OPMA as “very broad.” 194 Wn. App., 821, 826 (2016). The act does not limit standing

to any person. The act encompasses no requirement that a person seeking standing must

show a particular injury or satisfy a rigorous standing test. The court emphasized that a

permissive standing requirement coincided with the legislature’s declaration that “the

people . . . do not yield their sovereignty” and “insist on remaining informed” and the

OPMA’s instruction to construe the statute liberally. RCW 42.30.010, .910. In contrast,

Kirk addressed the narrower issue of whether a petitioner could void an agency action

based on the failure to provide notice to a board member of a special meeting.

In West v. Seattle Port Commission, the court wrote:

Although the OPMA declares that “[a]ny action taken at meetings failing to comply with [chapter 42.30 RCW] shall be null and void” it does not authorize individual people to annul or invalidate those actions. RCW 42.30.060(1).

194 Wn. App. 826, 828 (2016). The court wrote as if the standing conferred on “any

person” under RCW 42.30.120 and .130 extended to West’s entire action, which included

19 No. 40158-8-III McFarland v. Tompkins

declaratory relief. Nevertheless, the court declined to directly address whether West

possessed standing for his claim under the Uniform Declaratory Judgments Act because

West did not appeal dismissal of his request for declaratory relief.

One year later this court decided West v. Pierce County Council, 197 Wn. App.

895, 391 P.3d 592 (2017). This time Arthur West sued the Pierce County Council and

members of the council. He alleged council members violated RCW 42.30.120 and .130

based on a series of e-mails between members and the Pierce County Prosecuting

Attorney’s Office. The county council argued that the Kirk decision imposed standing

requirements on every OPMA claim. The superior court ruled that West lacked standing

to bring action under the OPMA. West appealed to this court, which reversed the

standing ruling but affirmed dismissal on the merits of the claims.

On appeal, Arthur West argued that, because of Washington courts’ broad

interpretation of the OPMA, he enjoyed standing as “any person” to bring an action under

RCW 42.30.130. The county council requested this court ignore the earlier West decision

because the earlier decision flouted Supreme Court precedent. This court agreed with

West because the plain language of the OPMA confers standing on “any person.” The

county council failed to recognize that Kirk did not address the specific statutory

language in RCW 42.30.120 and .130.

This court, in West v. Pierce County Council, referred to standing under the

OPMA as a whole, but did not address standing specifically under RCW 42.30.060 or

20 No. 40158-8-III McFarland v. Tompkins

.080. The court observed that the OPMA creates two specific causes of action for

violations of the act: civil penalties and injunctions. The court did not mention an action

to invalidate measures taken by an agency without proper notice.

As with this court in the two Arthur West decisions, we reject the applicability of

Kirk v. Pierce County Fire Protection District No. 21, 95 Wn.2d 769 (1981), to R.L.

McFarland’s appeal. Robert Kirk challenged the validity of action taken at a special

meeting because the fire district failed to give notice to a board member as required by

RCW 42.30.080. Nevertheless, the board member, the only beneficiary of the statutory

provision, did not object to the convening of the meeting or the action taken during the

special meeting. Instead, the member waived notice. The Supreme Court reasonably

concluded that only the board member possessed standing to enforce that OPMA

provision. Generally, one must be protected by the provision of a statute to gain standing

to sue for a violation of the provision. Five Corners Family Farmers v. State, 173 Wn.2d

296, 303, 268 P.3d 892 (2011); Center for Biological Diversity v. Department of Fish &

Wildlife, 14 Wn. App. 2d 945, 980, 474 P.3d 1107 (2020). RCW 42.30.080’s demand to

give advance notice to a board member seeks to protect a board member, not the general

public. RCW 42.30.080’s requirement of a list of agenda items seeks to protect the

citizenry as a whole, including R.L. McFarland.

The OPMA expresses a strong intent for open government, including the public

gaining knowledge of an agenda in advance of a special meeting. In many instances,

21 No. 40158-8-III McFarland v. Tompkins

members of the governing board of the public agency will not complain about a special

meeting notice that fails to list agenda subjects. In this appeal, none of the board

members objected to any violation of the OPMA. Under Walla Walla County’s position,

many violations of rules governing special meetings would go unremedied if no one other

than board members possesses standing.

RCW 42.30.130(4) references “any person” who prevails against a “public

agency.” The law does not impose civil penalties on the public agency so “any person”

must have standing to sue for violations beyond the civil penalty. The standing conferred

by subsection (4) could refer only to an action for an injunction or mandamus as

sanctioned by RCW 42.30.130, which again expressly grants standing to any person. We

question, however, whether the legislature had such a sophisticated analysis when

ruminating about standing under the OPMA. Since the legislature intended a liberal

reading of the act, we can discern no reason why the legislature would permit standing to

any person bringing an injunction to preclude a violation but not permit standing to any

person who seeks to enforce the provision declaring actions null and void for violations.

In construing statutes, we ascertain and effectuate the legislature’s intent. State v.

Keller, 2 Wn.3d 887, 910, 545 P.3d 790 (2024). If the statute’s meaning is plain on its

face, we must give effect to that plain meaning as an expression of legislative intent.

Department of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 43 P.3d 4 (2002).

Neither RCW 42.30.060 nor .080 denies a member of the public standing to declare void

22 No. 40158-8-III McFarland v. Tompkins

an action taken by a public body at a special meeting when the advance agenda failed to

list the subject matter.

We also glean the plain meaning of a statute by considering the text of the

provision in question, the context of the statute in which the provision is found, related

provisions, and the statutory scheme as a whole. Association of Washington Spirits &

Wine Distributors v. Liquor Control Board, 182 Wn.2d 342, 350, 340 P.3d 849 (2015).

Although other related statutes, unlike RCW 42.30.060, mention standing for “any

person,” the OPMA as a whole seeks sunshine on government action and desires

Washington citizens to beckon the dawn for government action. The OPMA recognizes

that citizens insist on remaining informed and informing the people’s public servants of

their views so that they may retain control over the instruments they have created.

RCW 42.30.010. The requirements for a special meeting notice permit citizens in

advance to learn of the topics to be discussed and be prepared to advocate their interests

with regard to those topics. A court should adopt the more reasonable interpretation of a

statute. State v. T.E.C., 122 Wn. App. 9, 27, 92 P.3d 263 (2004). Allowing a public

citizen to enforce the requirement of a detailed agenda for a special meeting appeals to

reason, as opposed to allowing the violation to go unremedied.

In Organization to Preserve Agricultural Lands v. Adams County, 128 Wn.2d 869,

913 P.2d 793 (1996), an advocacy organization sued Adams County under the OPMA.

The organization sought to nullify a permit issued for a waste site because two members

23 No. 40158-8-III McFarland v. Tompkins

of the county commission had discussed the issuance of the permit outside the confines of

an open meeting. The Supreme Court held that no violation occurred. Although the

Supreme Court did not address the standing of the plaintiff to invalidate the county

action, the court did not suggest the organization lacked standing.

Walla Walla County may contend that R.L. McFarland should particularly be

denied standing because he attended the January 7, 2021 special meeting of the

WWBOC. Under this argument, McFarland should not complain about any defect in the

notice when he otherwise attended the meeting. The county may highlight that, in Kirk v.

Pierce County Fire Protection District No. 21, 95 Wn.2d 769 (1981), the Supreme Court

underscored that the lack of notice to one fire commissioner did not preclude Robert Kirk

from attending the meeting. We reject such an argument as contravening the importance

of the OPMA. Despite specifically asking, McFarland still lacked knowledge that the

WWBOC would address the proposed January letters until the Board began to discuss the

letters during the special meeting. We do not know what other steps McFarland might

have taken if Walla Walla County had extended him advance notice. Among other steps,

he may have rallied other opponents of the letters to attend. Regardless, the OPMA does

not deny standing to a private citizen who attended a meeting that violated the act.

Proper Party

We already addressed whether R.L. McFarland is the proper plaintiff to sue Walla

Walla County for a violation of the OPMA. We now address the converse question.

24 No. 40158-8-III McFarland v. Tompkins

Walla Walla County contends it is not a proper defendant for R.L. McFarland’s suit.

Nevertheless, despite the distinction between the two concepts, Walla Walla County

conflates the two issues. In essence, Walla Walla County contends that it is not a proper

defendant because McFarland lacks standing to sue. We have already ruled that

McFarland possesses standing to seek nullification of action taken by Walla Walla

County, through its Board of County Commissioners, in violation of special meeting

rules. Because the board members acted on behalf of Walla Walla County and the

resolution authorizing the sending of the letters was an official act on behalf of the

county, Walla Walla County is a proper defendant to the claim seeking nullification.

Under CR 19, an entity is a necessary party if it holds an interest relating to the

subject matter of the action. Burt v. Department of Corrections, 168 Wn.2d 828, 833,

231 P.3d 191 (2010). Walla Walla County possesses an interest in the question of

whether a court voids one of its official acts.

R.L. McFarland contends that he may join Walla Walla County as a defendant to

his cause of action seeking civil penalties against county commissioners. We need not

address this contention, because we have already ruled that the county is a proper

defendant for another cause of action.

Mootness

The defense next asserts the defense of mootness. The defense mentions that

Governor Jay Inslee has departed office and Chairman Greg Tompkins has retired from

25 No. 40158-8-III McFarland v. Tompkins

office. More importantly, the defense highlights the absence of a current dispute over the

policy matters underlying this action. Also, according to Walla Walla County, it cannot

recall letters already sent. R.L. McFarland denies the appeal to be moot, but also asks

that we decide the case even if we find it moot because of the public importance of the

issue.

The law instructs to address mootness, in addition to standing, before considering

the merits of a case. Citizens for Financially Responsible Government v. City of

Spokane, 99 Wn.2d 350, 662 P.2d 845 (1983); Rosling v. Seattle Building & Construction

Trades Council, 62 Wn.2d 905, 907-08, 385 P.2d 29 (1963). We must dismiss a moot

issue. State v. Deskins, 180 Wn.2d 68, 80, 322 P.3d 780 (2014). A case is moot if it

involves “only abstract propositions or questions, the substantial questions in the trial

court no longer exist, or a court can no longer provide effective relief.” Spokane

Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005);

Housing Authority v. Pleasant, 126 Wn. App. 382, 387, 109 P.3d 422 (2005). The

dispute must rest on existing facts or rights. Hansen v. West Coast Wholesale Drug Co.,

47 Wn.2d 825, 827, 289 P.2d 718 (1955).

A major flaw impedes the defense’s assertion of mootness. The defense fails to

recognize the nature of R.L. McFarland’s suit. In his complaint, McFarland alleges that

the WWBOC action endangered his health. But McFarland’s suit does not challenge any

policy adopted or policy statement of the WWBOC based on the content of the policy.

26 No. 40158-8-III McFarland v. Tompkins

McFarland sues because the WWBOC allegedly violated the OPMA. The issue before

this court is not whether Governor Inslee handled the pandemic well or poorly. This

appeal does not ask us to resolve whether the WWBOC justifiably criticized the plan

adopted by Governor Inslee as to its broad inclusiveness and because of its potential harm

to Walla Walla County. Scientists and historians can debate for years the utility of

measures taken by government officials in combatting the spread of the COVID-19 virus.

The issue on appeal, although important, is narrower. The question is whether the

WWBOC violated the OPMA.

The defense may concede that the question of civil penalties is not moot. Indeed,

the question of whether board members must pay civil penalties for a knowing violation

of the OPMA abides regardless of the ending of the COVID-19 pandemic. The request to

nullify the resolution approving the January letters and the letters themselves also

remains active. The question of whether WWBOC violated the law by failing to provide

adequate notice for its special meeting remains in dispute no matter who sits in office.

The superior court or this court on appeal may nullify the resolution approving the

January letters regardless of the previous sending the letters. This appeal would be moot

only if Walla Walla County had recalled the letters, agreed that it violated the OPMA,

and the board members paid the penalties.

The defense does not explain how the inability to retrieve the sent letters precludes

the nullification of the resolution adopting the letters. R.L. McFarland asks for a voiding

27 No. 40158-8-III McFarland v. Tompkins

of the letters but does not disclose what, if any, further action he seeks assuming this

court nullifies the resolution. Conceivably, a court could order that the WWBOC contact

the addressees of the letter and inform the recipients that the court declared the resolution

authorizing the letters void such that the letters should not have been sent. If an

addressee no longer remains in office, the court might direct the WWBOC to send the

notification to his or her successor. On remand, we direct the superior court, after

advocacy from the parties, to determine the remedy to be entered. Regardless, a

nullification of the resolution still vindicates the purposes and dictates of the OPMA.

Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89 (2005)

assists in resolving the defense’s claim of mootness. The defense fund sued the city

under the Public Disclosure Act (PDA), another sunshine measure demanding

government transparency. On appeal, the city of Spokane asked for dismissal because

the city had since sent the fund the records sought. The Washington Supreme Court

disagreed. The merits of a PDA claim must be determined based on the circumstances

existing at the time of the request. Subsequent disclosure of the documents did not affect

the judicial proceeding. The PDA’s mandatory fees, costs, and sanctions provide for

relief even after the records are disclosed. OPMA provides for similar relief.

Laches

The defense argues that R.L. McFarland unreasonably delayed the filing of his suit

to their prejudice. McFarland filed suit on September 23, 2022, 624 days after the

28 No. 40158-8-III McFarland v. Tompkins

January 7, 2021 WWBOC meeting. The defense also emphasizes that ten months

elapsed before McFarland’s counsel contacted the Walla Walla County Prosecuting

Attorney’s Office. The superior court agreed with the defense and ruled that laches bars

all of the claims of McFarland. We disagree. We conclude that, even if McFarland

unreasonably delayed suit, the defense shows no prejudice, a prerequisite to laches.

Laches functions as an implied waiver arising from the claimant’s knowledge of

existing conditions and acquiescence in them during the passing of time. Buell v. City of

Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972). The burden of proof lies with the

party asserting the defense of laches. Rutter v. Rutter, 59 Wn.2d 781, 785, 370 P.2d 862

(1962). A party asserting the defense of laches bears the burden to prove: (1) knowledge

or reasonable opportunity to discover on the part of a plaintiff that he or she has a cause

of action against a defendant, (2) an unreasonable delay by the plaintiff in commencing

that cause of action, and (3) damage to the defendant resulting from the unreasonable

delay. King County v. Taxpayers of King County, 133 Wn.2d 584, 642, 949 P.2d 1260

(1997). Damage to a defendant can arise either from acquiescence in the act about which

plaintiff complains or from a change of conditions. Lopp v. Peninsula School District

No. 401, 90 Wn.2d 754, 759-60 (1978).

Prejudice to the defendant forms the critical element in laches. Laches is an

extraordinary defense appropriately applied only when the condition of the other party

has in good faith become so changed that the party cannot be restored to his or her former

29 No. 40158-8-III McFarland v. Tompkins

state. Ward v. Richards & Rossano, Inc., 51 Wn. App. 423, 435, 754 P.2d 120 (1988).

Laches, as an extraordinary remedy to prevent injustice and hardship, should not be

employed as an artificial excuse for denying a litigant that which in equity and good

conscience he is fairly entitled to receive, when the assertion of the claim, though tardy,

has not prejudiced anyone. Crodle v. Dodge, 99 Wash. 121, 168 P. 986 (1917). The

court will not presume prejudice merely from the fact of a delay. Clark County Public

Utility District No. 1 v. Wilkinson, 139 Wn.2d 840, 848, 991 P.2d 1161 (2000).

Generally, prejudice for purposes of laches depends on the particular facts and

circumstances of each case. Schrock v. Gillingham, 36 Wn.2d 419, 428, 219 P.2d 92

(1950). One important factor is the nature of the plaintiff’s claim or claims. Lopp v.

Peninsula School District, 90 Wn.2d 754, 759 (1978). Other factors include the

circumstances, if any, justifying the delay, the relief demanded, and the question of

whether the rights of other persons, such as the public, will be prejudiced by the

maintenance of the suit. Lopp v. Peninsula School District, 90 Wn.2d 754, 759 (1978).

Absent unusual circumstances, the doctrine of laches should not be invoked to bar

an action short of the applicable statute of limitation. Auve v. Wenzlaff, 162 Wash. 368,

298 P. 686 (1931); In re Marriage of Capetillo, 85 Wn. App. 311, 317, 932 P.2d 691

(1997). A court is generally precluded, absent highly unusual circumstances, from

imposing a shorter period under the doctrine of laches than that of the relevant statute of

limitations. Auve v. Wenzlaff, 162 Wash. 368 (1931); Brost v. L.A.N.D., Inc., 37 Wn.

30 No. 40158-8-III McFarland v. Tompkins

App. 372, 375, 680 P.2d 453 (1984). The defense does not contend that R.L. McFarland

ran the statute of limitations.

R.L. McFarland’s lawsuit vindicates the public’s interest in open government. A

court must invoke laches sparingly in suits brought to vindicate the public interest.

Grand Canyon Trust v. Tucson Electric Power Co., 391 F.3d 979, 987 (9th Cir. 2004).

The defense relies on Lopp v. Peninsula School District, 90 Wn.2d 754 (1978),

wherein the Supreme Court held that the challengers’ one-month delay after the special

election for a school district bond constituted an unreasonable delay. The challenger

contended that the school district failed to give proper notice of a board meeting during

which the board amended the title to a bond measure submitted to the voters.

Nevertheless, the court found the public to have been harmed by the delay in challenging

the vote approving the bond measure. The school district had received a favorable bid on

the bonds, and, if the district could not accept the bid, it would need to commence the

entire bond offering procedure again. The district would also lose three months of

interest income, and construction plans would be delayed. The delay in construction

would further exacerbate the already congested condition of classroom facilities. Walla

Walla County does not suffer any similar harm.

The defense complains that the delay in filing suit irreparably harmed it because

the legislature in the meantime changed rules governing public meetings, Greg Tompkins

left the WWBOC, the character of the state and national declarations of emergency

31 No. 40158-8-III McFarland v. Tompkins

changed, and the recollections of witnesses dulled. Nevertheless, the defense does not

identify any steps it took as a result in a delay in filing suit or any steps it would have

taken if it had known that R.L. McFarland would have eventually filed his OPMA suit.

The defense does not contend it would have taken any steps if McFarland’s lawyer had

contacted Walla Walla County earlier than ten months after January 2021. For these

reasons alone, the defense of laches fails.

R.L. McFarland’s counsel persistently informed Walla Walla County of its error

and eventually threatened suit. Even after the threat of suit, the county made no

corrections. Even after McFarland filed suit, Walla Walla County denied any mistake

and refused to rectify any violation of the OPMA. This failure to take action confirms

that McFarland did not lull the county into a false sense of security by reason of the lack

of a lawsuit. Reliance or a change in position is required. In re Marriage of Capetillo,

85 Wn. App. 311, 318 (1997); In re Marriage of Hunter, 52 Wn. App. 265, 270-71, 758

P.2d 1019 (1988).

The defense asserts that Chairman Greg Tompkins’ retirement prevents the

WWBOC from retracing its steps and remedying the defect by re-enactment with the

proper formalities. But the defense provides no evidence that Chairman Tompkins

resigned because R.L. McFarland delayed filing a lawsuit. Tompkins signed a

declaration but did not aver that he would have stayed in office longer in order to correct

the defective January 7, 2021 resolution and resend the letters to Washington officials if

32 No. 40158-8-III McFarland v. Tompkins

he had known McFarland would later sue. More importantly, Tompkins left office on

December 31, 2022. After suit, Walla Walla County enjoyed three months and eight

days to readopt the resolution and resend the letters, but took no remedial steps,

confirming again that the county remained adamant in its position and neither relied on

nor changed its position as a result of any conduct or lack of action by McFarland.

Despite having adequate time to take action at a lawful meeting before Chairman

Greg Tompkins’ retirement, Walla Walla County complains that it could not resend the

letters after the retirement. Yet, the county cites no law that would prevent the Board

today from writing the same letters and address the governor’s letter to the new

Washington governor. Greg Tompkins’ retirement does not preclude the WWBOC from

remedying any procedural defects through proper re-enactment of the January 7

resolution. When a governing body takes an otherwise proper action later invalidated for

procedural reasons, that body may retrace its steps and remedy the defect by re-enactment

with the proper formalities. Spokane Education Association v. Barnes, 83 Wn.2d 336,

378, 517 P.2d 1362 (1974); Henry v. Town of Oakville, 30 Wn. App. 240, 246, 633 P.2d

892 (1981).

The defense asserts that re-sending the letters would waste resources and lessen

the impact of the letters because of the ending of the pandemic. The county does not

quantify the waste of resources in terms of employee time or money. Of course, the

county also had an opportunity to consider this possible waste of resources and lessened

33 No. 40158-8-III McFarland v. Tompkins

impact years ago. Regardless, the defense, however, fails to recognize that any ruling

declaring the January 7 letters void does not require that the WWBOC prepare or send

another letter. No law requires any corrective action assuming this court declares the

January letters and January 7 ordinance invalid.

The defense fails to explain how any letter sent today to the governor would have

less influence than the January 7 letters particularly because the defense presents no

evidence that the letter impacted the actions of former Governor Jay Inslee. We do not

even know if Governor Inslee or one of his staff members received, let alone read, the

letter. If the letter influenced the governor’s office none, no later letter will curry less of

an impact. The defense further fails to present evidence of any sway the letters had on

the state legislators.

The WWBOC may still pen a letter to new Governor Rob Ferguson complaining

of former Governor Inslee’s measures and requesting that Ferguson reject such measures

in the event of a new pandemic. The WWBOC may also continue to advocate with

Walla Walla area and other legislators for legislation that would limit a governor’s power

at the time of another epidemic. If the WWBOC wants county voters to know that it

opposed the measures on behalf of its residents, the Board may still adopt a resolution

decrying the measures. The expense of such action would be nominal.

The defense contends that amendments to the OPMA notice requirements

constitute a material change in circumstances. The defense, however, fails to identify the

34 No. 40158-8-III McFarland v. Tompkins

nature of the changes or whether the changes apply to giving notice of a special meeting.

The defense does not explain why the amendments render writing another letter

impractical, let alone impossible. The amendment’s purpose was to “modernize and

update the Open Public Meetings Act emergency procedures to reflect technological

advances while maintaining the act’s public policy that governing body actions and

deliberations be conducted openly, balancing public safety in emergency conditions.”

SUBSTITUTE H.B. 1329, 1, 67th Leg., Reg. Sess. (Wash. 2022) Session laws version:

https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/House/

1329-S.SL.pdf?q=20250331142950.

The doctrine of laches seeks to remedy a loss of defense evidence. Davidson v.

State, 116 Wn.2d 13, 26, 802 P.2d 1374 (1991). The Walla Walla defense fails to

identify any missing evidence resulting from a delay in R.L. McFarland’s suit. Most of

the important evidence consists of documents readily available to the defense. The court

must address whether board members knew they violated the OPMA when adopting the

resolution approving of the letters. No board member, however, suggests he or she can

no longer remember his or her state of mind on January 7, 2021. Each board member has

signed a declaration repudiating any knowledge. January 2021 is not the hoary past.

OPMA Violation

The superior court ruled, on summary judgment, that the WWBOC violated the

OPMA when it adopted, at the January 7, 2021 special meeting, a resolution approving of

35 No. 40158-8-III McFarland v. Tompkins

the letters because the advance agenda for the meeting lacked the subject matter of the

letters. Walla Walla County does not challenge this ruling. We agree the superior court

was correct.

RCW 42.30.080 governs special meetings of a public agency’s governing body.

Sections 2 and 3 of the statute impose requirements on giving advance notice of a

(2) Notice of a special meeting called under subsection (1) of this section shall be: .... (b) Posted on the agency’s website . . .; and (c) Prominently displayed at the main entrance of the agency’s principal location.... Such notice must be delivered or posted, as applicable, at least 24 hours before the time of such meeting as specified in the notice. (3) The call and notices required under subsections (1) and (2) of this section shall specify the time and place of the special meeting and the business to be transacted. Final disposition shall not be taken on any other matter at such meetings by the governing body.

(Emphasis added.)

As previously discussed, a preceding section of the OPMA declares invalid action

taken at a special meeting without the necessary notice. The first paragraph of

RCW 42.30.060 declares:

(1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter [Open Public Meetings Act]. Any action taken at

36 No. 40158-8-III McFarland v. Tompkins

meetings failing to comply with the provisions of this subsection shall be null and void.

(Emphasis added.) As used in the OPMA, a “public agency” includes a “county.”

RCW 42.30.020(1)(b); Citizens Alliance for Property Rights Legal Fund v. San Juan

County, 181 Wn. App. 538, 544, 326 P.3d 73 (2014), aff’d, 184 Wn.2d 428, 359 P.3d 753

(2015). The act defines an “action.”

“Action” means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. “Final action” means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3).

The Washington Supreme Court, in In re Recall of Bird, 1 Wn.3d 419, 527 P.3d

1141 (2023), also deliberated about RCW 42.30.080’s demand of an advance notice of a

government body special meeting, which notice must disclose agenda topics. The special

meeting notice must “specify . . . the business to be transacted.” RCW 42.30.080(3).

The high court ruled that the listed agenda item “Local Control” did not provide notice of

business to be transacted. A member of the public could interpret the agenda subject’s

vague nomenclature to describe limitless topics. Because of the violation of

37 No. 40158-8-III McFarland v. Tompkins

RCW 42.30.080, the OPMA barred the Richland School District from taking action at the

special meeting and nullified a vote to lift a requirement that students wear masks. In

turn, citizens could recall from office those participating in adopting the resolution.

Civil Penalties

The superior court summarily dismissed R.L. McFarland’s claim for civil penalties

brought against individual WWBOC members because of a lack of evidence that any

board member knew that he or she violated the OPMA. We must decide whether

McFarland presented a genuine issue of material fact as to board members’ knowledge in

order to defeat the members’ summary judgment motion. Because of some

circumstantial evidence and because of the difficulty to contradict a party’s declaration of

his or her state of mind, we rule that McFarland presented sufficient evidence to raise a

question of fact.

The governing statute, RCW 42.30.120, states:

(1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him or her, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of five hundred dollars for the first violation. .... (3) The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person.

(Emphasis added.) As outlined in RCW 42.30.120, to escape summary dismissal of an

OPMA claim, the plaintiff must produce evidence showing (1) members of a governing

38 No. 40158-8-III McFarland v. Tompkins

body (2) held a meeting of that body (3) during which that body took action in violation

of the OPMA, and (4) the members of that body had knowledge that the meeting violated

the statute. Eugster v. City of Spokane, 118 Wn. App. 383, 424, 76 P.3d 741 (2003).

Thus, a successful suit for civil penalties, under RCW 42.30.120, requires a threshold

showing by the plaintiff that the member of the governing body being sued knew the

meeting wherein action taken violated the OPMA. Citizens Alliance for Property Rights

Legal Fund v. San Juan County, 181 Wn. App. 538, 543, 326 P.3d 730 (2014), aff’d, 184

Wn.2d 428, 359 P.3d 753 (2015).

R.L. McFarland concedes that board members must actually know of the OPMA

violation before being assessed civil penalties. He insists, however, that evidence

establishes, or at least a question of fact exists, that the three Walla Walla County

members of the Board of Commissioners knew of the violation. All three board members

deny any knowledge of the violation of the special meeting notice statute. We must

resolve whether McFarland and this court must accept the word of the county

commissioners. In doing so, we peruse Washington OPMA cases and principles of

summary judgment jurisprudence.

In Cathcart v. Andersen, 10 Wn. App. 429, 517 P.2d 980 (1974), aff’d, 85 Wn.2d,

530 P.2d 313 (1975), students of the University of Washington sued the school’s dean

and faculty because the faculty conducted closed meetings. The court ruled that, under

the OPMA, the faculty must convene their meetings in public. The court denied civil

39 No. 40158-8-III McFarland v. Tompkins

penalties against faculty members, however, because the attorney general advised faculty

members that closed meetings did not violate the OPMA. Uncontroverted affidavits

established that the dean and faculty accepted this advice. Thus, despite the violation, no

genuine issue of fact and final disposition prevented summary judgment. In re Recall of

Boldt, 187 Wn.2d 542, 386 P.3d 1104 (2017), the court also ruled in favor of board

members in a claim seeking civil penalties because the officials relied on legal advice.

WWBOC members presented no evidence that they relied on attorney advice.

Wood v. Battle Ground School District, 107 Wn. App. 550, 27 P.3d 1208 (2001),

saw a different outcome. School district board members discussed business by e-mail in

violation of the OPMA. In an action to recover civil penalties, the board members

contended they did not know they violated the law particularly because no Washington

court had addressed whether e-mail communications could constitute a meeting under the

act. Despite this disavowal, the Court of Appeals reversed a summary judgment

dismissal granted the board members. The writers of some of the e-mails expressed

concern about violating the OPMA. One e-mail stated that the state Attorney General

had expressed concerns relative to school board members being on school networks

because of the chance of discussing school issues with each other and in violation of the

OPMA. Despite their denials, reasonable persons viewing the evidence could differ as to

whether the defendants knew their e-mails violated the OPMA.

40 No. 40158-8-III McFarland v. Tompkins

In Zink v. City of Mesa, 17 Wn. App. 2d 701 (2021), the city violated the OPMA

when it evicted Donna Zink from a city council meeting after she refused to cease

videotaping the meeting. The trial court held that none of the city council members had

knowledge of the violation because none had received training. This court affirmed.

R.L. McFarland argues that Zink supports a ruling that a plaintiff establishes knowledge

of an OPMA violation if the government official underwent training. We do not read

Zink that broadly, but recognize training as a factor to consider. Zink v. City of Mesa

does not stand for the converse—that having attended training necessarily means that a

government body official knows of a violation when the violation occurs.

We already discussed the factual background behind In re Recall of Bird, 1 Wn.3d

419 (2023). Citizens sued for approval to recall school board members, not for civil

penalties. In a sentence, in the opinion, the Supreme Court wrote, however:

RSDB policy requires that the RSDB members be trained on the OPMA—therefore, RSDB members knew the OPMA’s requirements. RSD, Bd. of Dirs. Pol’y No. 1805, Open Government Trainings (July 22, 2014).

In re Recall of Bird, 1 Wn.3d 419, 431 (2023). The court added that one of the board

members alerted all members to the notice defect before the board voted on a resolution.

We have yet to present the obligatory recitation of summary judgment rules.

When ruling on standing, mootness, laches, and a violation of OPMA, this court could

41 No. 40158-8-III McFarland v. Tompkins

rule as a matter of law because of the lack of any dispute as to the evidence. The

application of summary judgment principles now looms critical.

This court reviews de novo an order granting summary judgment. Lunsford v.

Saberhagen Holdings, Inc., 166 Wn.2d 264, 270, 208 P.3d 1092 (2009). When

reviewing a summary judgment order, this court engages in the same inquiry as the trial

court, viewing the facts and all reasonable inferences in the light most favorable to the

nonmoving party. Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 270 (2009).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” CR 56(c). A material fact is one on which the outcome of

the litigation depends in whole or in part. Atherton Condominium Apartment-Owners

Association Board of Directors v. Blume Development Co., 115 Wn.2d 506, 516, 799

P.2d 250 (1990).

A party moving for summary judgment can meet its burden by pointing out to the

trial court that the nonmoving party lacks sufficient evidence to support its case. Guile v.

Ballard Community Hospital, 70 Wn. App. 18, 21, 851 P.2d 689 (1993). After the

moving party meets its initial burden to show an absence of material fact, the inquiry

shifts to the party with the burden of proof at trial. Young v. Key Pharmaceuticals, Inc.,

112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party is a defendant and meets

42 No. 40158-8-III McFarland v. Tompkins

this initial showing, then the inquiry shifts to the party with the burden of proof at trial,

the plaintiff. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 (1989). If, at this

point, the plaintiff fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of

proof at trial, then the trial court should grant the motion. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party bears the

burden of establishing that no genuine issue of material fact exists and that judgment as a

matter of law is warranted. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985).

All facts and reasonable inferences are construed in the light most favorable to the

nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d

88 (1972). The reviewing body may not weigh the evidence, assess credibility, consider

the likelihood that the evidence will prove true, or otherwise resolve issues of material

fact. TracFone, Inc. v. City of Renton, 30 Wn. App. 2d 870, 876, 547 P.3d 902, review

denied, 559 P.3d 494 (2024).

Each board members’ knowledge of whether he or she knew of the OPMA

violation lies singularly in their respective minds. When essential information exists

exclusively within the knowledge of one of the parties, the law generally imposes the

burden on the party possessed of that knowledge to make the proof. Cedar River Water

& Sewer District v. King County, 178 Wn.2d 763, 779, 315 P.3d 1065 (2013). We

discern no reason to distinguish between knowledge and lack of knowledge, for purposes

43 No. 40158-8-III McFarland v. Tompkins

of the assignment of the burden of proof, because both reside solely in the custody of the

other party. This rule of evidence should lessen a nonmoving party’s burden when

attempting to defeat a summary judgment motion based on the opposing party’s

declaration of lack of knowledge of the significance of an event.

We are reluctant to grant summary judgment when material facts are particularly

within the knowledge of the moving party. Riley v. Andres, 107 Wn. App. 391, 395, 27

P.3d 618 (2001). In such cases, the matter should proceed to trial in order that the

opponent may be allowed to disprove such facts by cross-examination and by the

demeanor of the moving party while testifying. Arnold v. Saberhagen Holdings, Inc.,

157 Wn. App. 649, 662, 240 P.3d 162 (2010).

Summary judgment may be inappropriate for determinations based on subjective

facts of motive, intent, good faith, knowledge, or malice. Coit v. Nappi, 248 Md. App.

44, 53, 239 A.3d 824 (2020); Haynie v. Twin Oaks Nursing Home, Inc., 17-192 (La. App.

5 Cir. 11/15/17), 232 So. 3d 74. A party’s knowledge, like other state of mind inquiries,

is elusive and rarely is established by other than circumstantial evidence. Blare v. Husky

Injection Molding Systems Boston, Inc., 419 Mass. 437, 439, 646 N.E.2d 111 (1995).

Thus, the determination of what a person knows or should have known under a specific

factual situation is typically ill-suited for resolution by summary judgment. Vitali v. Reit

Management & Research, LLC, 88 Mass. App. Ct. 99, 105, 36 N.E.3d 64 (2015).

44 No. 40158-8-III McFarland v. Tompkins

Conclusory, self-serving affidavits about a lack of knowledge are insufficient to

the absence of knowledge for purposes of a summary judgment motion. Freeland v. Erie

County, 204 A.D.3d 1465, 1467, 167 N.Y.S.3d 683 (2022). Self-serving affidavits raise

questions of credibility for the finder of fact, not the court, to resolve. Michael P. v.

Dombroski, 211 A.D.3d 1469, 1472, 182 N.Y.S.3d 828 (2022).

This court astutely noted:

Sometimes a material “fact” is particularly within the knowledge of the moving party and the nonmoving party cannot directly contradict it. In those situations, the nonmoving party may create a genuine issue of material fact by impeaching the moving party’s witness or witnesses. In those situations where a proponent’s “fact” reasonably might be disbelieved, it is advisable that the cause proceed to trial in order that the opponent ... be allowed to disprove such fact by cross-examination and by the demeanor of the witness while testifying.

Acosta v. City of Mabton, 2 Wn. App. 2d 131, 138, 408 P.3d 1095 (2018).

The superior court relied on the credibility of the three county commissioners

when they declared they lacked knowledge of the OPMA breach. This observation,

however, does not end our analysis. Despite law suggesting the grant of summary

judgment based solely on a subjective assertion of a party is inappropriate, the

Washington Supreme Court affirmed summary judgment in favor of government body

officials based on affidavit denial of knowledge of a violation of the OPMA. If no

circumstantial evidence contradicted the lack of knowledge proclaimed by the county

45 No. 40158-8-III McFarland v. Tompkins

commissioners, we would affirm the summary judgment order. But the record presents

some inconsistent indicators.

WWBOC members possess motivation to deny knowledge because of the

exposure to personal liability. We recognize that R.L. McFarland could have taken

depositions of the board members. Still, instead of testifying in court and being subject

to cross-examination, each board member signed a declaration with identical wording. In

other words, they did not testify in their own words. We recognize that a government

official’s training does not automatically equate to the showing of a knowing violation of

the OPMA. Nevertheless, all three WWBOC members underwent training, and that

training included the requirements for conducting a special meeting. On January 6,

McFarland wrote an e-mail to the WWBOC’s secretary that highlighted the vagaries of

the special meeting notice and particularly the failure to list the subject matter of the

letters to the governor and legislators. Chairman Greg Tompkins responded to

McFarland’s e-mail. A reasonable inference from this response is that Tompkins read

McFarland’s earlier e-mail

Reasonable Attorney Fees

R.L. McFarland argues that a finding of a violation entitles him to obtain attorney

fees. We agree.

The governing statute, RCW 42.30.120(4), declares:

46 No. 40158-8-III McFarland v. Tompkins

Any person who prevails against a public agency in any action in the courts for a violation of this chapter [RCW 42.30] shall be awarded all costs, including reasonable attorneys’ fees, incurred in connection with such legal action.

(Emphasis added.) The statute awards fees to a person who successfully establishes a

violation of any section in the OPMA. We have ruled that McFarland prevailed in his

claim under RCW 42.30.060 and .080 and in his request to nullify the WWBOC

resolution and January letters. This court may direct the superior court to award

reasonable attorney fees and costs for time spent on the appeal. Smith v. Behr Process

Corp., 113 Wn. App. 306, 347, 54 P.3d 665 (2002).

We remand to the superior court for a trial on R.L. McFarland’s claim for civil

penalties. Because of further proceedings in the superior court, we direct the superior

court to award McFarland a sum for reasonable attorney fees and costs incurred in

pursuing the claim to nullify the resolution and letters, both at the superior court and

appeals court level. The court should also award McFarland fees, both on appeal and at

the superior court level, attended to the pursuit of civil penalties if he succeeds on this

claim also.

CONCLUSION

We reverse the superior court’s grant of summary judgment in favor of Walla

Walla County and individual members of the WWBOC. We grant summary judgment

47 in favor of R.L. McFarland on his claim to nullify the January letters and the resolution

authorizing the letters. We remand to the superior court to enter an order nullifying the

WWBOC action and to determine what, if any, other relief is appropriate to effectuate the

order. We also remand to the superior court and for trial McFarland’s request for civil

penalties. On remand, the superior court should award McFarland reasonable attorney

fees and costs for efforts expended to nullify the WWBOC action and, should McFarland

prevail on his claim for civil penalties, award reasonable attorney fees and costs

expended to prevail on his second cause of action.

_________________________________ Fearing, J.

WE CONCUR:

______________________________ Lawrence-Berrey, C.J.

______________________________ Hazel, J.P.T.†

† Tony Hazel, an active judge of a court of general jurisdiction, is serving as a judge pro tempore of this court pursuant to RCW 2.06.150(1).