The 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IT IS FURTHER ORDERED the opinion filed April 30, 2024, is withdrawn and a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v. ) UNPUBLISHED OPINION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
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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.
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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
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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.
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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.
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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
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No. 39670-3-III
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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
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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).
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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.
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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.
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