The opinion
FILED
FEBRUARY 9, 2023
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
DION BLACKBURN, )
) No. 39012-8-III
Appellant, )
)
v. )
)
STATE OF WASHINGTON, ) UNPUBLISHED OPINION
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, OFFICE OF )
ADMINISTRATIVE HEARINGS, and )
CORPORATE JOHN DOES 1-10, )
)
Respondents. )
FEARING, J. — Dion Blackburn sues two Washington State subdivisions, the
Office of Administrative Hearings (OAH) and the Department of Social and Health
Services (DSHS). DSHS prosecuted, before the OAH, a demand that Dion Blackburn
pay child support to Brad Blackburn, her ex-husband, with whom the couple’s two
children primarily resided. We refer to the two by their respective first names to avoid
confusion. After two administrative law judges (ALJ) respectively entered consecutive
orders imposing a child support obligation, Dion brought this separate suit, in Thurston
County Superior Court. The suit alleges both government entities violated the Americans
with Disabilities Act (ADA) and denied her due process during the course of the OAH
No. 39012-8-III
Blackburn v. State
administrative proceeding. She appended a claim against DSHS for a purported violation
of the Public Records Act, (PRA) chapter 42.56 RCW.
The superior court granted both OAH and DSHS summary dismissal of all of Dion
Blackburn’s causes of action based on the defenses of sovereign immunity, quasi-judicial
immunity, res judicata, and ripeness. On appeal, we grant sovereign immunity to both
state subdivisions for the due process claim, but deny it for other claims. We affirm the
dismissal of the suit against OAH under the ADA on the basis of quasi-judicial
immunity. We affirm the dismissal of the claim under the ADA against DSHS on the
basis of res judicata. We affirm the dismissal of the PRA cause of action, but remand to
the superior court to dismiss this cause of action without prejudice rather than with
prejudice.
FACTS
Because Dion Blackburn appeals the summary judgment dismissal of her suit, we
recite the facts in the light most favorable to Dion. We observe that the parties
emphasized, in briefs and arguments made in support of and in opposition to the
summary judgment motion, the allegations of Dion, rather than the underlying facts.
Thus, the summary judgment motions of OAH and DSHS paralleled a motion to dismiss
under CR 12(b)(6). Therefore, we often highlight the allegations in Dion’s complaint.
Dion and Brad Blackburn maintained a committed relationship for many years,
married in 2003, and divorced in 2006. The couple begat two children, a son born in
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2000 and a daughter born in 2005. Dion initially functioned as the custodial parent of the
two children. Dion entered a relationship with another man, which relationship turned
abusive. Brad obtained a court order transferring primary residential placement of both
children to him. The court order imposed no obligation for child support on Dion. Dion
thereafter sought to return placement of the children to her.
Dion Blackburn, born in 1980, obtained a Bachelor’s Degree in criminal justice.
She previously worked in insurance and as a dental office manager. Beginning in 2013,
she worked for the Washington State Department of Labor & Industries (DLI) as a claims
adjustor, in which position she earned a salary of $2,855 per month. Brad left school
after his junior year in high school. By 2016, he earned a net monthly income of $3,602
as a delivery truck driver.
In September 2015, licensed therapist Jennifer Reza, who offices in San Clemente,
California, diagnosed Dion Blackburn with generalized anxiety disorder, posttraumatic
stress disorder, and alcohol use disorder. On September 1, 2015, Reza admitted Dion to
ninety-day intensive outpatient treatment because of severe functional impairment. Dion
then went on medical leave from her employment with DLI. Dion returned to work at
DLI in January 2016.
In January 2016, Brad Blackburn requested assistance from the DSHS Division of
Child Support (DCS) to garner child support from Dion, his ex-wife. DCS holds
statutory authority to establish child support amounts and to enforce payment of amounts
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when no court order addresses support. In February 2016, DCS commenced an
administrative proceeding to determine the amount of child support Dion should pay
Brad. Dion objected to the amount administratively established by DCS and requested a
hearing. Under RCW 74.20A.055(4), either the payee parent or payor parent may seek a
hearing if either party objects to a finding of financial responsibility. The proceeding is
adversarial in nature.
In March 2016, Dion Blackburn withdrew from active duties with DLI and began
to receive $1700 monthly long-term disability payments. In early March 2016, Licensed
Clinical Social Worker Diane Potratz, in Medford, Oregon, admitted Dion to a residential
treatment facility because of extreme anxiety, sleep disturbance, and posttraumatic stress
disorder.
DCS scheduled a hearing, on Dion Blackburn’s challenge to DCS’s administrative
assessment of child support, for March 18, 2016 before OAH, a State of Washington
subdivision separate from DSHS. Dion failed to appear at the hearing, and OAH entered
a default order against her.
Around April 12, 2016, Dion Blackburn sent OAH a letter from a healthcare
provider stating that she was undergoing treatment in a residential treatment facility. The
letter attached a March 11, 2016, statement from social worker Diane Potratz that verified
Dion had been in a facility. On April 12, Dion filed with OAH a petition to vacate the
default order. OAH scheduled a hearing on the petition for April 27. Dion also failed to
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appear at the April 27 hearing. On May 24, 2016, the Department of Labor & Industries
terminated the employment of Dion.
Dion Blackburn asked again for a new hearing date, which request OAH granted.
On June 10, 2016, an OAH Administrative Law Judge (ALJ) conducted a child support
hearing. Blackburn testified that DLI terminated her employment after having been
placed on long-term disability. At the hearing, Dion asked:
MS. BLACKBURN: Um, would it be appropriate for me to submit
the documentation that I do have from my providers to you, Your Honor, so
that you can kind of see . . . where I’m at with my—my medical situation,
and get a better picture of that. You can see that it’s not willfully that I
don’t want to work. I mean, I’m in the middle of a custody battle. Who
wouldn’t want to work? That—that contradicts the other, you know?
JUDGE STUDT: . . . I don’t necessarily need them. If you have a
burning desire to send them in, I can leave the record open, but frankly, I
don’t know that I need them to make a decision at this time.
Clerk’s Papers (CP) at 66.
On June 17, 2016, a week following the OAH hearing, Dion Blackburn signed and
delivered to DSHS a medical release permitting DSHS access to her records with Terilee
Wingate, a psychologist in Olympia, pertaining to her history of mental health treatment.
On June 22, Dion contacted DSHS and informed it that she was approved for a General
Assistance Unit (GAU) grant. On June 23, DSHS noted that Dion had been approved for
the Housing and Essential Needs (HEN) program.
On June 23, according to Dion Blackburn, DSHS claims manager Shawn Shaha
informed Dion that DSHS staff would forward OAH or the ALJ her medical records on
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file with DSHS so that the ALJ could supplement his findings. DSHS does not confirm
that this conversation transpired. In her complaint, Dion complains that DSHS did not
forward the records to the ALJ before the June 10 hearing. We assume the accuracy of
this part of the complaint since DSHS could not forward, by June 10, records it did not
receive until June 23. Dion does not state whether she believes DSHS failed to forward
the medical records to the ALJ after June 23.
On June 30, 2016, the OAH ALJ issued an order establishing Dion Blackburn’s
child support obligation. The ALJ found good cause excusing Dion’s failure to appear at
two earlier hearings due to treatment of her medical condition, and the ALJ vacated
default orders entered pursuant to those two failures to appear.
In the June 30 order, the ALJ concluded that Dion Blackburn was voluntarily
unemployed and imputed her income at $2,182.00 per month. The order described Dion
as being in “good health.” CP at 53. The ALJ imposed an obligation to pay $585 per
month with $3,396.75 in arrears beginning with January 2016. The ALJ’s order did not
disclose whether he reviewed any medical or counseling records of Dion. The order did
not explain why the ALJ concluded Dion was voluntarily unemployed.
On August 4, 2016, Dion Blackburn contacted DSHS requesting assistance
appealing the child support order. DSHS referred Dion to legal aid and informed her that
she could modify her child support order since she had begun receiving a GAU grant. On
August 9, Dion complained to DCS that it should have forwarded to the ALJ the records
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No. 39012-8-III
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showing her approval for HEN payments. DCS responded that it did not represent Dion
and she could have forwarded the records directly to OAH or requested additional time to
submit records.
On August 30, 2016, Dion Blackburn appealed the June 2016 order to the
Thurston County Superior Court. She asked that child support be terminated because of
her inability to work. She also asserted that the proceedings violated her rights under the
ADA. The appeal was dismissed as untimely because she did not file her petition for
review within thirty days of the ALJ’s order.
On January 1, 2018, OAH regulation WAC 10-24-010 became effective. The
lengthy regulation addresses accommodations under the ADA. WAC 10-24-010(3)
declares:
If, during any stage of an adjudicative proceeding, the administrative
law judge or any party has a reasonable belief that an otherwise
unrepresented party may be unable to meaningfully participate in the
adjudicative proceeding because of a disability, with that party’s consent
the administrative law judge shall refer the party to the agency ADA
coordinator and delay commencing or resuming the adjudicative
proceeding until the accommodation request is addressed by the ADA
coordinator.
On June 4, 2018, Dion Blackburn filed a petition with DCS to modify and reduce
her monthly child support payment to $10. The petition indicated she was unable to
work, although she provided no documentation of this inability. Dion complained that,
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No. 39012-8-III
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despite being told that DCS would forward medical records to the ALJ at the time of the
2016 proceeding, DCS failed to do so.
On June 8, 2018, Dion Blackburn tendered a PRA request to DSHS that requested
records that concerned herself. She desired the records to assist in an attempt to modify
her child support obligation. DSHS responded to the request on June 13 and estimated it
would produce the records on August 13.
On June 11, 2018, Dion Blackburn requested from OAH, as an accommodation,
that her child support modification hearing occur in person, that she receive additional
notices and flexible time restraints, and that she receive reminder calls. She did not
request the appointment of an attorney or ADA coordinator. OAH granted the request for
in-person hearing and additional notices, but denied the request for a reminder call. OAH
scheduled a hearing on the modification petition for July 30, 2018. OAH also offered
additional time, during which to file paperwork.
On July 27, 2018, Dion Blackburn requested postponement of the July 30 hearing
on three grounds. First, the Department of Licensing had suspended her driver’s license
because of her failure to pay child support. She worried she lacked transportation to the
hearing. Second, she needed time to process her PRA request. Third, her “anxiety [was]
through the roof.” CP at 97. Dion clarified that she did not seek an in-person hearing as
an accommodation for her disability but rather because of difficulties with DCS and
OAH. OAH granted a continuance and rescheduled the hearing for September 17. The
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ALJ granting the continuance advised Dion that she should be able to document her
current condition through medical records.
On August 8, 2018, DCS mailed 437 pages of records contained on a computer
disk to Dion Blackburn. The production included some redactions based on claimed
exemptions. DSHS wrote that the production fulfilled the June 8 request.
On September 17, 2018, an OAH ALJ conducted a hearing on Dion Blackburn’s
petition to reduce child support payments. During the hearing, Dion testified that she
suffered a temporary disability related to anxiety that prevented her from working
fulltime. She submitted no records supporting her having any physical or mental
limitations. Dion also testified that she cannot work because of tort claims she filed
against the State. She needed a flexible schedule to attend court hearings. If she did not
face court hearings, she could have begun to prepare to return to work.
The OAH ALJ imputed $1,695.99 as monthly net income to Dion Blackburn,
which figure reflected minimum wage. As of the date of the hearing, Brad earned
$4,459.22 net income per month. On October 4, 2018, the ALJ entered a new final order
adjusting Dion’s child support obligation to $470.00 per month. In a conclusion of law,
the ALJ wrote:
While Ms. Blackburn contends that she is temporarily disabled, she
has provided no current medical documentation that supports her position
after having ample time to do so.
CP at 300. Dion never appealed the 2018 child support order to the superior court.
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Dion Blackburn sent a second public records request to DSHS on January 11,
2019. Dion requested “all client records held by the DSHS programs marked in Section
B” on DSHS’ standard records request form. CP at 100. Dion checked all DSHS
programs and divisions listed in Section B, which included, but was not limited to, DCS,
community services division (CSD) public assistance, and state mental health institutions.
Next to “Other” in Section B of the DSHS request form, Dion wrote: “All recorded
conversations on the ICMS [Incapacity Case Management System].” CP at 19.
On January 23, 2019, DSHS responded to Dion Blackburn’s January 11 request:
You ask for all recorded conversations on the ICMS System. You
requested records from all DSHS programs, however, I am interpreting
your request to be for records maintained by the Community Services
Division (CSD). Please let me know if I have misinterpreted your request.
I am providing you a copy of all your ICMS notes and phone recordings
available. The five pages of available responsive records and 12 phone
recording I found are enclosed. They are being provided to you on a CD
with no redactions and at no charge. Please let me know if you need the
ICMS notes in paper form.
CP at 102. DSHS intended the letter to serve as its complete response to the January 11
demand for records.
According to DSHS, on July 2, 2019, Dion Blackburn e-mailed a third public
records request, this time to Western State Hospital:
I would like an in person review and hard copies as previously
request [sic] in January 2019 of all DSHS DCS records in my case and
files.
I would like to know every party my information has been requested
from and or shared with by your agency.
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I have received a CD sometime ago however information sought was
not found to be on this CD.
I need specifically all communication with DCS from June 01/2016-
August 31st 2019 all means all, all hand note all logs of communications
phone calls emails external and internal communications.
CP at 343. We do not know why Dion sent the request to Western State Hospital. We do
not know if Western State Hospital treated Dion. Dion denies that she sent any request to
the hospital.
On August 23, 2019, DSHS mailed to Dion Blackburn its initial load of
documents consisting of 302 pages covering the July 2 request sent to Western State
Hospital. DSHS estimated it would provide the next trove of records within thirty days.
On August 30, 2019, as DSHS prepared its response to Dion Blackburn’s third
public records request, Dion telephoned Marla Randall, a DSHS public records officer,
about the third request. In addition to discussing the recent request, Dion stated that
DSHS had misconstrued her second request as being limited to CSD records. As a result
of the conversation, DSHS reopened its response to Dion’s second public records request
dated January 11, 2019. On October 3, DSHS sent additional records in response to the
third request.
DSHS, having concluded that Dion Blackburn sought more records under her
January 11 request, began providing, in installments, more records responsive to the
January 11 request. On November 4, 2019, DSHS mailed a letter informing Dion that the
next installment of records responsive to the January 11 request would take
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approximately thirty business days to prepare. The final letter in the record responsive to
the January 11 request was mailed on August 26, 2020, and states that a future
installment of responsive records was being prepared.
PROCEDURE
On September 5, 2019, Dion Blackburn commenced this suit against DSHS and
OAH. On December 4, 2019, Dion filed an amended complaint. The amended
complaint summarizes the facts, in part, as follows:
6. During a hearings [sic] before the OAH involving the Department
of Social and Health Services: Division of Child Support, Ms. Blackburn
sought accommodations pursuant to the Americans with Disabilities Act
(hereinafter, the “ADA”); as a result of diagnoses, some of which were
performed by the Department of Social and Health Services (hereinafter,
the “Department”); while some missed hearings were vacated on the basis
of disability, ultimately Ms. Blackburn’s inability to produce the records
resulted in a negative outcome in two Final Orders from the OAH. In
between the First and Second Order, New Rules came out with regards to
how the OAH and Administrative Law Judges should handle cases with
disabled individuals; however, none of the new rules were applied in the
second hearing, which led to the Second Final Order. As a result of the
failure to follow those rules, Dion Blackburn was substantially deprived of
her rights under the rules and her constitutional due process rights.
CP at 14-15 (emphasis added). The complaint does not identify the date of the hearings
for which Dion had sought accommodations. The complaint also does not identify the
accommodations requested.
In paragraph 27 of her amended complaint, Dion Blackburn alleged:
The severity of the disorders claimed by Dion Blackburn may have
required assistance in procuring and providing the necessary documentation
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[of her disability], though the documentation was provided to the OAH and
to the Department, and was available to the Department’s Division of Child
Support well before the hearing.
CP at 18.
Dion Blackburn labeled the first cause of action in her amended complaint as
negligence:
COUNT 1—NEGLIGENCE
43. Plaintiff incorporates by reference the preceding and following
paragraphs and allegations as though the same were fully set forth herein.
44. Defendants breached their duty of care to the plaintiff by failing
to comply with applicable state law related to the duties of counsel to
provide evidence to a tribunal and the duty to provide reasonable
accommodations under WAC 10-24-010.
45. As a direct and proximate result of Defendants’ negligence,
Plaintiffs have suffered damages in an amount to be proven at trial.
46. Prior to both Final Orders, the Department had record of Dion
Blackburn’s mental health or medical condition; however, counsel for the
Department’s Division of Child Support, which had access to the records,
failed to disclose those documents to the tribunal in both of the pertinent
hearings. . . .
47. Though Rules were in effect relating to the provision of
accommodations to disabled persons in a hearing before the OAH in the
second hearing held on September 17, 2018, and the previous hearing
accepted testimony related to the disability, no reasonable accommodation
was provided to Dion Blackburn, and the Administrative Law Judge failed
to enter any Finding of Fact or Conclusion of Law to provide a basis for
denying an accommodation, although aware that Dion Blackburn claimed
to have a disability.
CP at 21 (emphasis added).
Dion Blackburn also pled a cause of action against both OAH and DSHS for
violation of due process for failure to refer Dion to an ADA coordinator or to provide
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Dion assistance of counsel despite DCS and OAH knowing that Dion suffered from a
disability that prevented her from meaningful participation in the OAH proceedings.
Finally, Dion alleged that DSHS breached the covenant of good faith and fair dealing and
violated the PRA.
OAH moved for summary judgment dismissal of Dion Blackburn’s entire
complaint. OAH relied solely on quasi-judicial immunity as a ground for dismissal.
OAH conceded, for purposes of the motion, all facts pled in the complaint.
DSHS initially moved for summary judgment dismissal of all but Dion
Blackburn’s PRA claim. DSHS assumed that Dion sued for failure to reasonably
accommodate her under the ADA and negligent failure to forward evidence of her
disability to OAH. DSHS asked for dismissal of the reasonable accommodations claim
based on res judicata and the statute of limitations. It asked for dismissal of the
negligence claim on res judicata. Finally, DSHS asked for dismissal of the breach of the
duty of good faith on the merits. In its briefing, DSHS construed Dion’s first cause of
action in its complaint as one under the ADA.
In a written response to both summary judgment motions, Dion Blackburn
requested, in part, that the court allow additional discovery and leave to amend her
complaint. OAH and DSHS objected to a continuance.
On September 4, 2020, the superior court granted Dion Blackburn a continuance
of the summary judgment motions. Counsel for the first time appeared at the hearing, on
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No. 39012-8-III
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behalf of Dion, although only for the limited purpose of arguing against the summary
judgment motions. The trial court granted Dion a continuance of the summary judgment
hearing for three months and rescheduled the hearing for December 11, 2020. Dion
thereafter continued to prepare her pleadings pro se.
Despite asking for a continuance of OAH’s summary judgment motion hearing,
Dion Blackburn filed a brief that, in part, argued that OAH was not entitled to quasi-
judicial immunity on an ADA claim. In a reply brief in support of its summary judgment
motion, OAH argued that Dion did not assert a claim under the ADA. In a second reply
brief, OAH noted that DSHS construed Dion’s complaint as asserting the ADA. OAH
argued that it was entitled to sovereign immunity under the ADA. It also argued
sovereign immunity required dismissal of Dion’s due process cause of action.
On September 17, 2020, DSHS moved for summary judgment also on Dion
Blackburn’s PRA cause of action and scheduled a hearing on its motion for October 16,
2020. DSHS argued that Dion’s PRA claim was premature because DSHS continued to
respond to requests. On October 16, the superior court also postponed the hearing date
for this motion until December 11.
On December 11, 2020, Dion Blackburn filed another motion to continue the
summary judgment motions hearing for additional discovery and another motion to
amend her complaint. The written motion to amend did not identify the nature of the
amendment other than to indicate she needed to match her complaint with the evidence.
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The written motion also expressed a wish to “add [an] additional cause of action that
would otherwise be barred.” CP at 556. She did not name the additional cause of action.
Dion, however, filed a proposed second amended complaint that included causes of
action under the ADA and the Washington law against discrimination (WLAD).
At the December 11, 2020 hearing, the superior court denied Dion Blackburn’s
motion to continue the summary judgment motions. The court noted that Dion had
identified certain facts materially relevant to the outcome of the case but had not offered
an explanation for why the discovery had not taken place sooner. The superior court also
denied the motion to amend the complaint as untimely, as being futile, and as prejudicial
to DSHS and OAH.
The superior court granted summary judgment dismissal of all of Dion
Blackburn’s claims against both defendants. In its oral ruling, the court commented that
he adopted OAH’s and DSHS’ arguments regarding quasi-judicial immunity, res judicata,
and statute of limitations. The superior court did not resolve whether Dion had asserted a
cause of action under the ADA in her first amended complaint.
LAW AND ANALYSIS
On appeal, Dion Blackburn assigns error to the denial of her motion to amend her
complaint a second time, denial of her motion for postponement of the summary
judgment hearing for purposes of conducting discovery, and granting of the summary
judgment motions on her causes of action for negligence, violation of due process, and
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violation of the PRA. In so arguing, she asserts that she also pled a cause of action for
violations of the ADA that she subsumed in her action for negligence. Dion assigns no
error to dismissal of her claim for breach of the covenant of good faith and fair dealing.
OAH and DSHS, as part of their respective summary judgment motions, did not
ask the superior court to address the merits of any of Dion Blackburn’s claims, and the
court did not do so. Dion addresses the merits of her due process cause of action in her
opening brief and OAH addresses the claim in its brief. OAH also contends in its brief
that Dion’s ADA claim fails on the merits. We decline to address the merits of any of
Dion’s causes of action because of lack of development of the claims before the superior
court and because we dismiss the claims based on affirmative defenses. Plein v.
Lackey, 149 Wn.2d 214, 222, 67 P.3d 1061 (2003).
Americans with Disabilities Act Pleading
On appeal, Dion Blackburn maintains that she asserted a claim under the ADA in
that section of her amended complaint that also alleged negligence. OAH and DSHS do
not take a position to the contrary, but do not concede this point. A claim under the ADA
impacts the defense of sovereign immunity. Therefore, we discuss whether the complaint
asserted a cause of action under the ADA.
A pleading in a civil suit must contain (1) a short and plain statement showing that
the pleader is entitled to relief and (2) a demand for judgment for the relief claimed.
CR 8(a). As a notice pleading state, Washington requires only a simple, concise
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statement of a claim for relief. Pacific Northwest Shooting Park Association. v. City of
Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006). This liberal standard permits
pleadings that give notice to the court and opposing parties of the general nature of the
claim asserted. Dewey v. Tacoma School District No. 10, 95 Wn. App. 18, 23, 974 P.2d
847 (1999).
Inexpert pleadings may survive summary judgment, but insufficient pleadings
cannot. Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342,
352 (2006). A pleading is insufficient when it does not give the opposing party fair
notice of what the claim is and the ground upon which it rests. Lewis v. Bell, 45 Wn.
App. 192, 197, 724 P.2d 425 (1986). At the very least, a complaint must identify the
legal theories on which the plaintiff seeks recovery. Dewey v. Tacoma School District
No. 10, 95 Wn. App. 18, 25 (1999). A party who does not plead a cause of action or
theory of recovery cannot finesse the issue by later inserting the theory into trial or
appellate briefs and contending it was present all along. Dewey v. Tacoma School
District No. 10, 95 Wn. App. 18, 26 (1999).
Dion Blackburn’s summary opening section, in paragraph 6 of the complaint,
invoked the ADA. The summary paragraph suggested that Dion sought accommodations
from OAH and DSHS pursuant to the ADA.
Dion Blackburn’s first cause of action pled a negligence claim. The pleadings
asserted that DSHS and OAH had breached duties of care toward Dion, thereby causing
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her to suffer harm. Still, the language in the negligence cause of action referenced
reasonable accommodations under WAC 10-24-010. This regulation implements
“accommodations under the federal Americans with Disabilities Act (ADA).” WAC 10-
24-010(1). We conclude that OAH and DSHS received fair notice that Dion sought
recovery under the ADA.
Dion Blackburn complains that OAH and DSHS, both branches of the state of
Washington, took inconsistent positions before the superior court as to whether she pled a
claim under the ADA. She asks us to apply judicial estoppel to bar both state entities
from contending she never sued under the ADA. We need not address this contention.
Motion to Amend Complaint
Dion Blackburn assigns error to the superior court’s denial of her motion to amend
her complaint a second time. The motion sought to expressly add causes of action under
the ADA and the WLAD. We already have ruled that her first amended complaint
included a cause of action under the ADA. The addition of a WLAD claim would not
impact our ruling on appeal. Therefore, we avoid addressing this assignment of error.
Motion to Continue for Discovery
In her appeal brief, Dion Blackburn complains that the trial court granted
discovery sanctions against her when the court denied her second motion to continue the
summary judgment motions for purposes of discovery. We reject this reframing of the
assignment of error. Blackburn cites no authority for the proposition that denying a
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motion to continue a summary judgment motion amounts to discovery sanctions. We
review this assignment of error as a denial of the continuance motion under CR 56(f).
A trial court may continue a summary judgment hearing if a party shows need to
obtain affidavits, take deposition, or conduct other discovery. CR 56(f). This court
reviews a trial court’s denial to continue a summary judgment motion for abuse of
discretion, reversing only if the decision was based on untenable or unreasonable
grounds. Building Industry Association of Washington v. McCarthy, 152 Wn. App. 720,
743, 218 P.3d 196 (2009).
A trial court may deny a motion for a continuance if the requesting party does not
have a good reason for the delay in obtaining the evidence. Butler v. Joy, 116 Wn. App.
291, 299, 65 P.3d 671 (2003). Dion Blackburn had obtained an earlier continuance but
failed to pursue discovery after the continuance. Because Dion couches this assignment
of error in terms of a discovery sanction, she fails to analyze the denial of additional
discovery in accordance with the principles announced under CR 56(f). We rule that the
trial court did not abuse discretion when denying the motion for continuance.
Affirmative Defenses
We continue in our review of the appeal on the assumption that Dion Blackburn
pled causes of action for violations of the ADA, negligence, denial of due process, and
violation of the PRA. Dion limits her PRA cause of action to DSHS. OAH and DSHS
assert the defense of Eleventh Amendment sovereign immunity against the ADA claim
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since the claim arises under federal law. DSHS also asserts sovereign immunity with
regard to the due process cause of action. OAH raises quasi-judicial immunity for all
three claims targeting it. DSHS raises the defenses of res judicata and the statute of
limitations to the negligence, ADA, and due process claims. Finally, DSHS contends that
Dion’s PRA cause of action was premature.
Sovereign Immunity
Sovereign immunity implicates a federal court’s jurisdiction. Federal Deposit
Insurance Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).
Neither party has suggested that sovereign immunity rids a state court of jurisdiction.
Still, we proceed to resolve sovereign immunity before addressing the merits of the case.
A court needs jurisdiction to address the merits. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94-95, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). We
address sovereign immunity for an ADA first and later discuss immunity for a due
process cause of action.
Resolution of sovereign immunity sends us traveling on a meandering path
through the fog, sometimes on a federal track and sometimes on a state track. We
conclude that the facts presented by Blackburn, in opposition to the state subdivisions’
summary judgment motions and in the context of her allegations of a violation of the
ADA, preclude sovereign immunity.
21
No. 39012-8-III
Blackburn v. State
The Americans with Disabilities Act of 1990 forbids discrimination against
disabled persons in three major areas of public life. Title I covers discrimination in
employment. Title II blankets discrimination in public services, programs, and benefits.
Title III concerns handicap discrimination in public accommodations. Dion Blackburn’s
suit implicates Title II.
42 U.S.C. § 12132, the focus of ADA Title II, declares:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs or activities of a public entity, or be subjected to
discrimination by any such entity.
The act defines the term “public entity” to include state and local governments, as well as
their agencies and instrumentalities. § 12131(1). Persons with disabilities are “qualified”
if they, “with or without reasonable modifications to rules, policies, or practices, the
removal of architectural, communication, or transportation barriers, or the provision of
auxiliary aids and services, meet[] the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public entity.” §
12131(2). Title II’s enforcement provision incorporates by reference § 505 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794a, which authorizes private citizens to bring
suit for money damages. 42 U.S.C. § 12133.
We juxtapose 42 U.S.C. § 12132 with the Eleventh Amendment to the United
States Constitution. The Eleventh Amendment proclaims:
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No. 39012-8-III
Blackburn v. State
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by citizens of another State, or by citizens or subjects
of any foreign State.
The amendment expressly precludes federal courts from entertaining suits against a state
by a citizen of another state. The language does not prevent federal law from applying in
a state court suit against a state, even if the law imposes damages on the state. Nor does
the wording preclude suit, even in federal court, of a citizen of a state against his state of
residence. Still, the United States Supreme Court has repeatedly held that Eleventh
Amendment immunity applies to unconsented suits brought by a state’s own citizens.
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363, 121 S. Ct.
955, 148 L. Ed. 2d 866 (2001); Kimel v. Florida Board of Regents, 528 U.S. 62, 72-73,
120 S. Ct. 631, 145 L. Ed. 2d 522 (2000). The Eleventh Amendment even prohibits suits
brought against nonconsenting states in state court based on federal law. Alden v.
Maine, 527 U.S. 706, 731-32, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999); Harrell v.
Washington State ex rel. Department of Social & Health Services, 170 Wn. App. 386,
402, 285 P.3d 159 (2012). For purposes of Eleventh Amendment immunity, local
governments, including judicial actors, are entitled to the same shield from suits afforded
to states. Mount Healthy City School Board of Education v. Doyle, 429 U.S. 274, 280, 97
S. Ct. 568, 50 L. Ed. 2d 471 (1977).
23
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Blackburn v. State
The United States Congress may abrogate the states’ Eleventh Amendment
immunity in order to enforce another constitutional provision. Tennessee v. Lane, 541
U.S. 509, 517, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). This congressional power
generally derives from the Fourteenth Amendment. According to the United States
Supreme Court, Congress can abrogate a state’s sovereign immunity when it does so
pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to
enforce the substantive guarantees of that sweeping amendment intended to limit state
autonomy. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct. 2666, 49 L. Ed. 2d 614
(1976). This enforcement power is a “broad power indeed.” Mississippi University for
Women v. Hogan, 458 U.S. 718, 732, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982).
The power to abrogate immunity includes the authority both to remedy and to
deter violation of rights guaranteed by the Fourteenth Amendment by prohibiting a
broader swath of conduct, including that which is not itself forbidden by the
Amendment’s text. Kimel v. Florida Board of Regents, 528 U.S. 62, 81 (2000). Stated
differently, Congress may enact prophylactic legislation that proscribes facially
constitutional conduct, in order to prevent and deter unconstitutional conduct. Nevada
Department of Human Resources v. Hibbs, 538 U.S. 721, 727-728, 123 S. Ct. 1972, 155
L. Ed. 2d 953 (2003); City of Boerne v. Flores, 521 U.S. 507, 518, 117 S. Ct. 2157, 138
L. Ed. 2d 624 (1997). For example, in Nevada Department of Human Resources v.
Hibbs, the high Court upheld the constitutionality of the Family and Medical Leave Act
24
No. 39012-8-III
Blackburn v. State
of 1993 in favor of a male state employee because of the breadth of Congress’ § 5 power
even though the equal protection clause precludes only purposeful discrimination and the
employee failed to show intentional discrimination.
To determine whether Congress waived sovereign immunity with any given
enactment, a court must ask two predicate questions: first, whether Congress
unequivocally expressed its intent to abrogate that immunity; and second, if it did,
whether Congress acted pursuant to a valid grant of constitutional authority. Tennessee v.
Lane, 541 U.S. 509, 517 (2004). When enacting the ADA, Congress invoked the sweep
of its authority, including the power to enforce the Fourteenth Amendment and to
regulate commerce. Tennessee v. Lane, 541 U.S. 509, 516 (2004). Congress intended
the ADA to provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities, including in the context of
government services. 42 §§ 12101(b)(1), (b)(4). Congress expressly waived Eleventh
Amendment sovereign immunity. A portion of the act reads:
A State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or State court of
competent jurisdiction for a violation of this chapter.
42 U.S.C. § 12202 (footnote omitted). Thus, the first question posed of whether
Congress intended to waive sovereign immunity is answered in the positive. We must
still resolve, however, whether Congress possessed the power to give effect to this intent.
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No. 39012-8-III
Blackburn v. State
While Congress must have a wide berth in devising appropriate remedial and
preventative measures for unconstitutional actions, those measures may not work a
substantive change to the governing law. Tennessee v. Lane, 541 U.S. 509, 520 (2004).
If a measure portends a substantive change, Congress has exceeded its authority. The
line between remedial legislation and substantive redefinition is not easy to discern. City
of Boerne v. Flores, 521 U.S. 507, 519-20 (1997). Therefore, Congress must have wide
latitude in determining where the boundary lies. City of Boerne v. Flores, 521 U.S. 507,
519-20 (1997). In order to demarcate the line between remedial and substantive
legislation for purposes of the validity of a congressional enactment under § 5 of the
Fourteenth Amendment, the Court asks whether the legislation exhibits a congruence and
proportionality between the injury to be prevented or remedied and the means adopted to
that end. Tennessee v. Lane, 541 U.S. 509, 520 (2004). This test may echo the rational
relationship test, or intermediate scrutiny test, imposed in equal protection litigation. In
City of Boerne v. Flores, the Supreme Court held that Congress exceeded its § 5 authority
when it enacted the Religious Freedom Restoration Act of 1993 because the enactment’s
stated purpose was to restore a constitutional rule that the Court had rejected. The act
was also significantly out of proportion to the objective of the First Amendment.
A jurist might expect the ADA to implement the equal protection clause, rather
than the due process clause, of the Fourteenth Amendment because of the enactment’s
quest to enable a disadvantaged minority, the physically and mentally disabled, to
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No. 39012-8-III
Blackburn v. State
function in society as equal human beings. Nevertheless, the United States Supreme
Court, in Tennessee v. Lane, 541 U.S. 509 (2004), accessed the due process clause when
assessing whether Congress possessed the power to enact Title II of the ADA and thereby
waive sovereign immunity. The Court identified the constitutional rights to attend a trial,
to afford access to the public of court hearings, and to participate meaningfully in a
hearing and asked whether Title II proportionately remedied violation of those rights
when studied in light of the harm caused by lack of access to court proceedings and to
judicial justice. In analyzing the proportionality and congruency, the high Court
examined the history’s abrogation of those rights. Stated differently, the Court sought to
discern whether a history of discrimination against the disabled required a powerful
remedy to solve difficult and intractable problems that would warrant Title II’s strong
measures. The Court had previously declared that the Eleventh Amendment precluded
the award of money damages under Title I of the ADA for state violations, the title that
redresses employment discrimination. Board of Trustees of University of Alabama v.
Garrett, 531 U.S. 356, 360, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001).
George Lane and Beverly Jones brought action against the State of Tennessee and
some Tennessee counties. Lane and Jones, both paraplegics who used wheelchairs for
mobility, claimed the state court system denied them access to, and the services of, the
court because of their disabilities. The government compelled Lane to appear to answer
criminal charges on the second floor of a county courthouse that had no elevator. At his
27
No. 39012-8-III
Blackburn v. State
first appearance, Lane crawled up two flights of stairs to get to the courtroom. When
Lane later returned to the courthouse for another hearing, he refused to crawl again or to
be carried by officers to the courtroom. Law enforcement consequently arrested and
jailed Lane for failure to appear. Jones, a certified court reporter, lacked access to a
number of county courthouses, and, as a result, lost both work and an opportunity to
participate in the judicial process. Jones and Lane sought damages and equitable relief
under ADA’s Title II.
According to the Supreme Court, in Tennessee v. Lane, Title II seeks to enforce
the prohibition on irrational disability discrimination. In doing so, Title II intends to
uphold basic constitutional guarantees, including the right of access to the courts
protected by the due process clause of the Fourteenth Amendment and the confrontation
clause of the Sixth Amendment. The due process clause requires the States to afford civil
litigants a meaningful opportunity to be heard by removing obstacles to their full
participation in judicial proceedings. Members of the public, including those with
disabilities, also have a right to open courts secured by the First Amendment.
When perusing the history of treatment of handicapped citizens, the United States
Supreme Court, in Tennessee v. Lane, saw a backdrop of pervasive unequal treatment in
the administration of state services and programs, including systematic deprivations of
fundamental rights to those with disabilities. The Court gave examples of denial of the
rights to education, housing, voting, marriage, and juror service and the unjustified civil
28
No. 39012-8-III
Blackburn v. State
commitment of those with handicaps. In turn, Title II of the ADA reached a wide array
of official conduct in an effort to enforce an equally wide array of constitutional
guarantees. The State of Tennessee asked the Court to adjudge this breadth of Title II as
a deathblow to its validity. The State complained that Title II extended to all activities of
government, such as voting booths, education facilities, and seating at municipal owned
hockey stadia and the law’s implementation would drain government of resources. The
high Court refused to examine the broad range of Title II applications and instead limited
its review to access to courts and a meaningful participation in litigation. The Court
adjudged Title II as valid § 5 legislation at least to the extent it applied to the class of
cases implicating accessibility to judicial services. Title II’s requirement of court
accessibility was congruent and proportional to its object of enforcing the right of access
to the courts. The unequal treatment of disabled persons in the administration of judicial
services had a long history, and persistent legislative efforts failed to remedy the
problem.
The United States Supreme Court next considered the waiver of sovereign
immunity under Title II of the ADA in a suit wherein a paraplegic inmate in a state prison
sued the State of Georgia and prison officials for money damages based on prison
conditions unconducive to his handicap. United States v. Georgia, 546 U.S. 151, 126 S.
Ct. 877, 163 L. Ed. 2d 650 (2006). The Supreme Court reversed dismissal of Tony
Goodman’s ADA claim and remanded for further consideration as to whether the
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No. 39012-8-III
Blackburn v. State
prisoner pled constitutional violations commensurate with his ADA claims that Congress
could validly redress by abrogating sovereign immunity. The leading opinion spotted, in
Goodman’s pro se complaint, a possible assertion of an Eighth Amendment claim of
cruel and unusual punishment that the Fourteenth Amendment’s due process clause
would incorporate.
OAH and DSHS recognize that Tennessee v. Lane and United States v. Georgia
declared that Congress abrogated in part Washington’s sovereign immunity under Title II
of the ADA, but both state government divisions assert this waiver applies only in limited
circumstances. The State subdivisions emphasize that the Supreme Court qualified its
holding, in Tennessee v. Lane, by stating it did not intend to consider the wide variety of
applications of Title II to the states. Instead, according to DSHS and OAH, the Court
allowed abrogation in two categories: (1) a person’s fundamental right of access to the
courts, and (2) conduct that actually violates the Fourteenth Amendment. The two
defendants go further and imply the right to access extends only to physical access. OAH
and DSHS then limit Dion Blackburn’s ADA claim to an assertion that she had a right to
a referral of a representative at state expense. Finally, as the argument proceeds, the right
to a referral in an administrative proceeding does not fall under either the right to access
or a direct violation of the Fourteenth Amendment. In so arguing, OAH and DSHS
emphasize the shocking facts of a paraplegic crawling up stairs to a Tennessee
courtroom.
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No. 39012-8-III
Blackburn v. State
In furtherance of its argument, OAH forwards In re Marriage of King, 162 Wn.2d
378, 174 P.3d 659 (2007), for the proposition that the right to access to the courts does
not extend to a publicly-funded legal representative in civil court. During a five-day
parenting plan trial, Brenda King acted pro se, while counsel represented Michael King.
At the trial’s conclusion, the superior court entered a parenting plan granting primary
residential care of the children to the father. On appeal, Brenda contended that she, as an
indigent parent, possessed a constitutional right, under article I, section 3, article I,
section 10, and article I, section 12 of the Washington State Constitution, to appointment
of counsel at public expense in the dissolution proceeding. This Washington Supreme
Court disagreed.
When insisting that the Washington Constitution afforded her a right to
appointment of an attorney, Brenda King relied in part on Tennessee v. Lane. In
response, the Washington Supreme Court wrote:
The mere fact that “access” is a linguistically broad term does not
bring the appellant’s inability to obtain counsel within the authority
of Lane and Bullock. The Court in Lane was dealing with physical barriers
to access and services, barriers that were effectively imposed by the State in
that case. References to “meaningful” access in Lane should be read in that
light: the incongruity of a right of access that is all but denied by physical
obstacles. In Bullock, the barrier to “access” was court-imposed fees. It is
more than an insignificant linguistic leap to equate that barrier to access
with a right to publicly funded legal representation.
In re Marriage of King, 162 Wn.2d 378, 390 (2007).
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No. 39012-8-III
Blackburn v. State
We recognize that we must follow Washington Supreme Court precedent when
applying state law. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). We do not
have that obligation with respect to federal law. Instead, we are bound by United States
Supreme Court rulings on federal law. Chesapeake & Ohio Railway Co. v. Martin, 283
U.S. 209, 221, 51 S. Ct. 453, 75 L. Ed. 983 (1931).
We do not read Tennessee v. Lane as narrowly as argued by OAH and DSHS and
as written by our state high court, in In re Marriage of King. We do not read Tennessee
v. Lane to limit abrogation of sovereign immunity to cases wherein the disabled claimant
was denied physical access to the courts. The Court’s language never restricted
abrogation of sovereign immunity to bodily barriers. Instead, the Court noted that the
due process clause also requires the States to afford certain civil litigants a
“meaningful opportunity to be heard” by removing obstacles to their full participation in
judicial proceedings. Tennessee v. Lane, 541 U.S. 509, 523 (2004). The Court cited
Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), wherein the
Court held that the State of Connecticut must waive a divorce filing fee for those who
cannot afford the payment. The Court also cited M.L.B. v. S.L.J., 519 U.S. 102, 117 S.
Ct. 555, 136 L. Ed. 2d 473 (1996), wherein the Court also required the State of
Mississippi to waive trial transcription fees for a mother appealing termination of her
parental rights. These barriers to access to justice entailed indigency, not physical
handicaps.
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Blackburn v. State
OAH and DSHS’s contention belittles mental disabilities when compared to
physical disabilities. The ADA defines a “disability” as including both “physical or
mental impairments.” 42 U.S.C. § 12102(1)(A). We deem a mental disability as serious
as a physical disability and one that also creates barriers to meaningful access to justice.
We also distinguish In re Marriage of King because Dion Blackburn seeks, in the
alternative, the assistance of an ADA coordinator. Presumably, DSHS has such a
coordinator on staff, and DSHS would not incur costs if the coordinator assisted Dion.
We also note that In re Marriage of King was decided under the Washington
Constitution, not the United States Constitution’s due process clause. Brenda King did
not assert the ADA.
The facts of Dion Blackburn’s case have yet to be established. Nevertheless, Dion
alleges that the failure of OAH and DSHS to appoint her an attorney or other
representative denied her the opportunity to fully present all of her evidence. We deem
this allegation to fall under the umbrella of denial of a meaningful opportunity to be
heard.
OAH also relies on Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 180 L. Ed.
2d 452 (2011), for the proposition that child support proceedings do not implicate a due
process right to representation. But OAH, despite quoting the relevant passage from
Turner, does not recognize the import of Turner. That critical segment reads:
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No. 39012-8-III
Blackburn v. State
We consequently hold that the Due Process Clause does
not automatically require the provision of counsel at civil contempt
proceedings to an indigent individual who is subject to a child support
order, even if that individual faces incarceration (for up to a year). In
particular, that Clause does not require the provision of counsel where the
opposing parent or other custodian (to whom support funds are owed) is not
represented by counsel and the State provides alternative procedural
safeguards equivalent to those we have mentioned (adequate notice of the
importance of ability to pay, fair opportunity to present, and to dispute,
relevant information, and court findings).
Turner v. Rogers, 564 U.S. 431, 448 (2011).
A South Carolina court held Michael Turner in contempt for failing to pay child
support. On appeal, Turner argued that the State violated his due process rights by failing
to appoint him counsel before being incarcerated for contempt. The Supreme Court
agreed. Although the Supreme Court wrote that appointment of counsel was not
necessarily required at civil contempt proceedings against an indigent individual, due
process may require provision of counsel when the opposing parent is represented by
counsel and the State fails to provide alternative procedural safeguards to insure adequate
presentation of relevant information. Because the State did not supply alternative
methods to assist Turner in presenting his financial data, the State deprived Turner of due
process by failing to appoint counsel at public expense.
During her OAH hearing, Dion Blackburn faced an experienced litigator
employed by DCS. She maintains that her disability prevented her from presenting
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No. 39012-8-III
Blackburn v. State
critical medical records and either counsel or an ADA coordinator could have assisted her
in this presentation. Thus, Turner v. Rogers benefits Dion, not OAH.
DSHS cites Harrell v. Washington State ex rel. Department of Social & Health
Services, 170 Wn. App. 386 (2012) as granting it sovereign immunity from ADA claims.
Garrett Harrell sued DSHS for denying him employment as a special commitment
counselor because of his night blindness. Because Harrell sued based on employment
discrimination, not discrimination in public services and benefits, Title I of the ADA
controlled. Therefore, this court correctly followed Board of Trustees of the University of
Alabama v. Garrett, 531 U.S. 356 (2001) wherein the United States Supreme Court held
that Congress did not waive sovereign immunity for States under Title I of the ADA.
Assuming this court declared Congress to lack the power to waive sovereign immunity
for the entirety of ADA, we erred. Harrell fittingly ignored Tennessee v. Lane, 541 U.S.
509 (2004), decided eight years earlier, because Tennessee v. Lane addressed Title II of
the ADA.
Tennessee v. Lane, 541 U.S. 509 (2004) directs a court to assay the proportionality
of the remedy afforded under Title II to the historic injury suffered by disabled citizens in
the context of the particular harm suffered by the plaintiff. Because of the extensive
balancing performed by the United States Supreme Court, in Tennessee v. Lane, in the
context of the due process right to meaningful participation in litigation, we see no need
to perform a further analysis when the plaintiff claims denial of a meaningful opportunity
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No. 39012-8-III
Blackburn v. State
to litigate her case because of a disability. Congress appropriately exercised its power to
waive sovereign immunity in the context of Dion’s allegations.
We issue the opposite ruling with regard to Dion Blackburn’s cause of action of
denial of due process. No legislative act abrogates Washington’s sovereign immunity
from a money suit arising under the due process clause. A suit seeking money damages
for a violation of the due process clause must employ the vehicle of 42 U.S.C. § 1983,
which creates a remedy for the violation of rights under the United States Constitution.
Section 1983 does not trump Eleventh Amendment immunity for a state and state
departments. Quern v. Jordan, 440 U.S. 332, 338, 99 S. Ct. 1139, 59 L. Ed. 2d 358
(1979); Cross v. State of Alabama, State Department of Mental Health & Mental
Retardation, 49 F.3d 1490, 1502 (11th Cir. 1995). Although only DSHS seeks sovereign
immunity from the § 1983 claim, the OAH is also a state department and unmistakably
also entitled to the immunity.
Quasi-Judicial Immunity
Since the two state agencies do not enjoy sovereign immunity under the ADA, we
move to quasi-judicial immunity. Only OAH asserts this defense. OAH contends it is
entitled to quasi-judicial immunity because Dion Blackburn sues over an alleged failure
of OAH’s administrative law judge to appoint her a representative for the child support
proceeding. We agree that OAH deserves quasi-judicial immunity and that this immunity
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No. 39012-8-III
Blackburn v. State
extends to the remaining two claims of negligence, and an ADA violation. The immunity
would also extend to deprivation of due process.
Under numerous circumstances, government officials enjoy qualified immunity
from damages liability when charged with constitutional or common law tort liability.
Under this qualified immunity, the official, usually an executive branch employee, retains
immunity from a common law tort unless acting in bad faith. Musso-Escude v. Edwards,
101 Wn. App. 560, 569, 4 P.3d 151 (2000). For constitutional torts redressed under 42
U.S.C. § 1983, qualified immunity protects an executive actor from liability for her
actions as long as she does not violate relevant law “clearly established” at the time of the
alleged violation. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
396 (1982); Westmoreland v. State, 73 Wn. App. 286, 291-92, 869 P.2d 71 (1994).
Contrary to executive officers, judicial officers retain absolute immunity because
their special functions require a full exemption from liability. Butz v. Economou, 438
U.S. 478, 508, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). English courts afforded judges
absolute immunity for acts exercised in their judicial functions for centuries before the
thirteen colonies broke from the kingdom. Bradley v. Fisher, 13 Wall. 335, 347, 20 L.
Ed. 646 (1871). This immunity continues today for common law torts. Taggart v.
State, 118 Wn.2d 195, 203, 822 P.2d 243 (1992). Judges, including state court judges,
also receive immunity when sued on constitutional claims pursuant to 42 U.S.C. § 1983.
Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Finally, state
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No. 39012-8-III
Blackburn v. State
judges sued for ADA violations possess immunity. Duvall v. County of Kitsap, 260 F.3d
1124, 1133 (9th Cir. 2001).
Like other forms of official immunity, judicial immunity is an immunity from suit,
not just from the ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11, 112
S. Ct. 286, 116 L. Ed. 2d 9 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
2806, 86 L. Ed. 2d 411 (1985) (plurality opinion). Immunity is not merely a defense to
liability but an entitlement not to stand trial or face the other burdens of litigation.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Janaszak v. State, 173 Wn. App. 703, 712,
297 P. 3d 723 (2013). Accordingly, a claimant does not overcome the defense by
allegations of bad faith, corruption, or malice, the existence of which ordinarily cannot be
resolved without engaging in discovery and an eventual trial. Mireles v. Waco, 502 U.S.
9, 11 (1991); Butz v. Economou, 438 U.S. 478, 509 (1978).
Decisional law lists various related reasons behind judicial immunity. Judicial
immunity does not exist for the benefit of the judge; rather, it protects the administration
of justice by ensuring that judges decide cases without fear of personal lawsuits. Lallas
v. Skagit County, 167 Wn.2d 861, 864, 225 P.3d 910 (2009); Taggart v. State, 118 Wn.2d
195, 203 (1992). The judge must decide all cases within his or her jurisdiction brought
before him or her, including controversial cases that arouse the most intense feelings in
the litigants. Pierson v. Ray, 386 U.S. 547, 554 (1967). The law tasks judges to decide
controversies involving great pecuniary interests, the liberty and character of the parties,
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No. 39012-8-III
Blackburn v. State
and disputes that excite the deepest feelings. Butz v. Economou, 438 U.S. 478, 509
(1978). Such adjudications invariably produce at least one losing party, who rejects the
soundness of the decision. Butz v. Economou, 438 U.S. 478, 509 (1978). The loser often
ascribes improper motives to the judge. Butz v. Economou, 438 U.S. 478, 509 (1978).
The judge should not fear that unsatisfied litigants will hound him or her with
litigation charging malice or corruption. Pierson v. Ray, 386 U.S. 547, 554 (1967).
Imposing such a burden on judges would contribute not to principled and fearless
decision-making but to intimidation. Pierson v. Ray, 386 U.S. 547, 554 (1967). If a civil
action could be maintained against a judge by virtue of an allegation of malice, judges
would lose that independence without which no judiciary can either be respectable or
useful. Butz v. Economou, 438 U.S. 478, 509 (1978). An appeal may correct any
mistakes. Pierson v. Ray, 386 U.S. 547, 554 (1967).
One might expect an administrative law judge to be considered a judge for
purposes of “judicial immunity,” since the office includes the word “judge.”
Nevertheless, the law instead creates a new category of immunity and assigns the
administrative law judge “quasi-judicial immunity.”
Under the quasi-judicial immunity doctrine, judicial immunity afforded judges
extends to executive branch judicial officers, such as administrative law judges, who
serve in judicial capacities. Layne v. Hyde, 54 Wn. App. 125, 773 P.2d 83 (1989).
Quasi-judicial immunity attaches to persons or entities who perform functions so
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No. 39012-8-III
Blackburn v. State
comparable to those performed by judges that the persons should share the judge’s
absolute immunity while performing those functions. Savage v. State, 127 Wn.2d 434,
441, 899 P.2d 1270 (1995); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 99,
829 P.2d 746 (1992). When quasi-judicial immunity applies, an absolute bar precludes
civil liability. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 99 (1992);
Babcock v. State, 116 Wn.2d 596, 606-08, 809 P.2d 143 (1991).
Adjudication within an administrative agency shares enough of the characteristics
of the judicial process that administrative law judges should also be immune from suits
for damages. Butz v. Economou, 438 U.S. 478, 512-13 (1978). The conflicts which
hearing examiners seek to resolve are as fractious as those which come to court. Butz v.
Economou, 438 U.S. 478, 513 (1978). Administrative law requires that agency
adjudication contain many of the same safeguards available in the judicial process. Butz
v. Economou, 438 U.S. 478, 512-13 (1978). The proceedings are adversary in nature.
Butz v. Economou, 438 U.S. 478, 513 (1978). They are conducted before a trier of fact
insulated from political influence. Butz v. Economou, 438 U.S. 478, 513 (1978). A party
is entitled to present his case by oral or documentary evidence. Butz v. Economou, 438
U.S. 478, 513 (1978). The transcript of testimony and exhibits together with the
pleadings constitute the exclusive record for decision. Butz v. Economou, 438 U.S. 478,
513 (1978). The parties are entitled to know the findings and conclusions on all of the
issues of fact, law, or discretion presented on the record. Butz v. Economou, 438 U.S.
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No. 39012-8-III
Blackburn v. State
478, 513 (1978). The administrative law judge, like a judge, issues subpoenas, rules on
proffers of evidence, regulates the course of the hearing, and makes or recommend
decisions. Butz v. Economou, 438 U.S. 478, 513 (1978). Those who complain of error in
such proceedings may seek agency or judicial review. Butz v. Economou, 438 U.S. 478,
514 (1978). Any complaints of error must be resolved by an appeal rather than suit
against the administrative law judge. Butz v. Economou, 438 U.S. 478, 514 (1978).
To determine if quasi-judicial immunity applies, Washington courts review the
function the person performs, rather than the person who is performing it. Lallas v.
Skagit County, 167 Wn.2d 861, 865 (2009). This analysis may require a detailed
examination of those functions as listed in authorizing statutes. Kelley v. Pierce County,
179 Wn. App. 566, 573-74, 319 P.3d 74 (2014).
In its brief, OAH efficiently and effectively outlines the nature and duties of an
ALJ employed by OAH as established by Washington statutes. The OAH retains
independence from state administrative agencies and remains responsible for impartial
administration of administrative hearings. RCW 34.12.010. A chief ALJ appoints OAH
ALJs, and the ALJs sit subject to discipline and removal for cause. RCW 34.12.030.
The ALJ holds similar powers to a judge. The ALJ issues subpoenas, enters protection
orders, and controls discovery. RCW 34.05.446. The ALJ makes evidentiary rulings.
RCW 34.05.452. An ALJ enters conclusions of law based on statutes, regulations, and
case law. RCW 34.05.461(3). OAH maintains a record of ALJ decisions.
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RCW 34.05.476. A losing party may correct any error by judicial review to the superior
court. RCW 34.05.558.
Dion Blackburn could have sought review, by the chief ALJ, of any decision to
deny her a referral to the ADA coordinator or appointment of an attorney. WAC 10-24-
010(6). Blackburn could have also sought judicial review of any refusal to consider
evidence. RCW 34.05.570(3). In short, ALJs act in a judicial capacity throughout the
entire administrative procedure. Layne v. Hyde, 54 Wn. App. 125, 131 (1989).
Many Washington decisions reference Butz v. Economou, 438 U.S. 478 (1978),
when outlining the parameters of and when listing the rationales for quasi-judicial
immunity. The United States Supreme Court granted the Department of Agriculture
judicial review officer, the chief hearing examiner, and the department attorney absolute
immunity from all of Economou’s causes of action, which included violation of due
process, violation of the First Amendment, abuse of legal process, malicious prosecution,
invasion of privacy, negligence, and trespass.
In Layne v. Hyde, 54 Wn. App. 125 (1989), an employer sued the administrative
law judge and unemployment compensation claimant’s counsel for conspiracy to violate
its civil rights, abuse of process, outrage, and negligence. The employer alleged the ALJ
and the employee’s attorney collaborated to deprive it of a fair employment security
hearing. In an amended complaint, the employer further alleged that the ALJ lacked
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No. 39012-8-III
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jurisdiction over the employment security case because of his political “interest” and
misconduct. This court affirmed dismissal of the suit based on quasi-judicial immunity.
Judicial immunity and quasi-judicial immunity extend complete immunity to a
judge performing as a judge, but a judge exercising nonjudicial functions lacks absolute
immunity. Butz v. Economou, 438 U.S. 478, 509 (1978); Lallas v. Skagit County, 167
Wn.2d 861, 865 (2009). Absolute judicial immunity does not apply to nonjudicial acts,
such as administrative, legislative, and executive functions that judges may on occasion
be assigned to perform. Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 98 L. Ed.
2d 555 (1988); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 100 (1992).
The test for determining whether the act of a hearing examiner or an
administrative law judge enjoys quasi-judicial immunity differs under federal law from
state law. Federal law employs the following factors to determine whether a particular
act is judicial in nature:
(1) the precise act is a normal judicial function; (2) the events
occurred in the courtroom or an adjacent area such as judge’s chambers; (3)
the controversy centered around a case then pending before the judge; and
(4) the events at issue arose directly and immediately out of a confrontation
with the judge in his or her official capacity.
Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (quoting Meek v. County
of Riverside, 183 F.3d 962, 967 (9th Cir. 1999)). To make a showing that quasi-judicial
immunity is justified under state law, the government must establish (1) the official
performs a function analogous to a function performed by judges, (2) the policy reasons
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justifying judicial immunity would also justify immunity for that official, and (3)
sufficient safeguards mitigate the harshness of absolute immunity. Lutheran Day Care v.
Snohomish County, 119 Wn.2d 91, 106 (1992).
Courts construe the factors governing quasi-judicial immunity broadly in favor of
immunity. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). Courts grant
immunity even when one or more of the factors are missing. Adams v. McIlhany, 764
F.2d 294, 297 (5th Cir. 1985).
The federal law test applies to Dion Blackburn’s ADA and due process claims.
Since Blackburn grounds a claim of negligence on the failure of the ALJ to enforce a
regulation in part implementing the ADA, federal law may apply to the negligence claim
also. Regardless of whether the state test applies to the negligence cause of action, OAH
satisfies both tests in Blackburn’s appeal.
The OAH ALJs performed the function of a judge. They entertained discretion.
They issued a judicial decision after a hearing open to the public. They regulated the
course of a case, including an evidentiary hearing. They followed rules. Their decisions
should not have been impacted by a fear of being assessed damages.
Dion Blackburn contends that an ALJ’s duty to refer a litigant to an ADA
coordinator constitutes an administrative, rather than a judicial function. Blackburn
suggests that such a referral generally does not occur during an administrative hearing,
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such that it does not come inside the courtroom. Blackburn emphasizes that a referral
does not constitute a decision on the merits of a case.
We do not construe the task of appointing an ADA coordinator so narrowly. Dion
Blackburn never asked for appointment of counsel or an ADA coordinator. She argues
instead that the administrative law judge should have known of the need for an
appointment based on the judges’ observations of her during the administrative hearing.
Thus, an appointment would have resulted from the judicial function of presiding over a
hearing. Any ruling would have impacted the process of the case during the
administrative hearing. Even if Dion had requested assistance in advance of the hearing,
the ALJ would have needed to adjudge Dion’s need for assistance. The ALJ may have
sought input from other parties as to the propriety of an appointment. Any referral
decision would have resulted from Dion petitioning the ALJ and the ALJ issuing an order
in a discrete child support case rather than adopting a broad policy for administration of
the OAH.
In reviewing the condition of a party and determining her need for a lawyer or
other assistant, the ALJ functions in the nature of a judge. A decision to appoint echoes
the judge’s sole authority to assess whether one is competent to stand trial. A judge holds
a duty to adjudge the capacity of a criminal defendant if the judge doubts the capacity.
RCW 10.77.060(1).
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Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) parallels the
circumstances of Dion Blackburn’s appeal to this court. Christopher Duvall suffered
from near deafness. Duvall was party to a marital dissolution action in the superior court
of Kitsap County. He requested from the superior court judge and the superior court’s
ADA coordinator contemporaneous videotext display of the trial. Duvall insisted that
other technology offered by the county did not suffice for his unique circumstances.
Both the coordinator and the superior court judge denied the request. The judge first
learned of the request when Duvall’s attorney brought a motion at the beginning of trial
for the accommodation.
Christopher Duvall sued the superior court judge, the court administrator, the
county’s ADA coordinator, and Kitsap County for failing to accommodate his hearing
impairment. He contended that the defendants violated the federal Rehabilitation Act, the
Americans with Disabilities Act, and the Washington Law against Discrimination by
failing to provide real-time transcription for the marital dissolution hearings. The district
court granted summary judgment to the judge and the court administrator on the basis of
judicial immunity. The circuit court of appeals held that the superior court judge acted in
a judicial capacity, not an administrative or executive capacity, when he refused to
accommodate Duvall. The judge rendered his decision while presiding over the marital
dissolution suit. He rendered a decision in response to a motion and when exercising
control over the courtroom.
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Dion Blackburn sues OAH, not either of the administrative law judges who
reviewed her challenge to DCS’ imposition of child support. OAH, however, is entitled
to the same quasi-judicial immunity afforded the ALJs. The grant of quasi-judicial
immunity to an administrative law judge extends to the judge’s employer and to the
government entities vicariously liable for the judicial officer’s act. Lutheran Day Care v.
Snohomish County, 119 Wn.2d 91, 101 (1992); Creelman v. Svenning, 67 Wn.2d 882,
885, 410 P.2d 606 (1966); Janaszak v. State, 173 Wn. App. 703, 719 (2013).
Res Judicata
DSHS seeks the affirmation of dismissal of the negligence, ADA, and due process
claims against it on the doctrine of res judicata. DSHS maintains that, because Dion
could have asserted any rights to the appointment of an attorney or ADA coordinator or
any rights to the review of her medical records either during the 2016 or 2018
administrative hearing or on judicial review, res judicata now bars her from asserting the
causes of action in this later proceeding. We agree. Dion had the opportunity to litigate
her need for accommodation and the importance of the ALJ’s review of medical or
psychological records during either proceeding. Although our ruling applies to each
proceeding, we write as if DSHS prosecuted only the 2016 proceeding.
Dion Blackburn asserts two federal claims: an ADA violation and denial of due
process under the Fourteenth Amendment. The latter claim falls under 42 U.S.C. § 1983,
the vehicle under which a claimant enforces federal constitutional rights. Graham v.
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Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Eugster v.
Washington State Bar Association, 198 Wn. App. 758, 773, 397 P.3d 131 (2017). We
must first decide whether we apply res judicata principles emanating from Washington
law or federal law to these federal causes of action. Res judicata may bar constitutional
claims brought under 42 U.S.C. § 1983. Migra v. Warren City School District Board of
Education, 465 U.S. 75, 81, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984); Allen v. McCurry,
449 U.S. 90, 94 n.5, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). 28 U.S.C. § 1738 requires
all federal courts to give preclusive effect to state court judgments whenever the courts of
the state, from which the judgments emerged, would do so. Therefore, under federal law,
state preclusion rules, including res judicata principles, govern whether a state court
judgment bars a plaintiff’s § 1983 claim. Sunrise Corp. of Myrtle Beach v. City of Myrtle
Beach, 420 F.3d 322, 327 (4th Cir. 2005). State principles of res judicata also control the
bringing of an ADA cause of action. Buck v. Thomas M. Cooley Law School, 597 F.3d
812, 816-17 (6th Cir. 2010).
Under Washington law, res judicata, or claim preclusion, prohibits the relitigation
of claims and issues that were litigated or could have been litigated in a prior action.
Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995); Pederson v.
Potter, 103 Wn. App. 62, 67, 11 P.3d 833 (2000). Res judicata extends not only to
affirmative claims but also to defenses that the claimant could have asserted in the earlier
proceeding. Eugster v. Washington State Bar Association, 198 Wn. App. 758, 791
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No. 39012-8-III
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(2017). The doctrine curtails multiplicity of actions and harassment in the courts.
Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395, 429 P.2d 207 (1967).
The broad general rule of res judicata suggests that a party is always prohibited
from litigating a claim or issue that could have been raised in any earlier suit.
Nevertheless, limits constrain the doctrine. Under Washington law, for the doctrine of
res judicata to apply, a prior judgment must have a concurrence of identity with a
subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and
(4) the quality of the persons for or against whom the claim is made. Rains v. State, 100
Wn.2d 660, 663, 674 P.2d 165 (1983); Berschauer Phillips Construction Co. v. Mutual of
Enumclaw Insurance Co., 175 Wn. App. 222, 227-28, 308 P.3d 681 (2013).
Dion Blackburn contends her civil suit and the administrative proceedings lack
any of the four concurrences of identity. She argues that this lawsuit would not impair or
destroy any rights or interests established by the October 4, 2018 child support order.
She highlights that the 2016 and 2018 orders create no rights in DSHS. She underscores
that she does not sue her ex-husband.
Blackburn contends the rights involved in the child support administrative
proceeding differ from the rights in her civil suit against DSHS. The administrative
hearing implicated the rights of Brad to child support. This second case involves the
right to assistance under the ADA and to due process. Dion further maintains that the
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transactional nucleus of the events is different for each proceeding based on the same
analysis applied to the other elements of res judicata.
Dion Blackburn asserts that DSHS erroneously deems that she wishes her child
support obligation to be lowered. Dion concedes that the presence of an attorney on her
behalf may not have led to a lower child support amount. She instead seeks recovery for
the loss of an attorney and the value of this. Dion’s assertion conflicts with her appellate
brief, in which she specifically asks the court to void the child support order. Opening
Br. at 77.
Dion Blackburn contends the evidence in this civil suit differs from evidence in
the administrative proceeding. In the present suit, she must show a disability that needs a
reasonable accommodation and a failure to accommodate the disability. Evidence in the
administrative proceeding involved the income and expenses of Dion and the father of
her children. The evidence in this civil suit involves internal communications between
OAH and DSHS. Dion submitted psychological records to DSHS and DSHS failed to
forward the records. The evidence in this new suit would also include the behavior of
Blackburn that should have alerted DSHS to the need for an attorney or coordinator.
DSHS observes that Dion Blackburn asserts, in the case on appeal, that her
behavior in the administrative process should have forewarned DSHS to the need for
reasonable accommodations. DSHS maintains that Dion wanted the ALJ to find that she
suffered a handicap that needed accommodations. That behavior and the evidence of that
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No. 39012-8-III
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behavior would have been present in the first proceeding. Dion also wanted DSHS and
OAH to communicate in the previous case. Thus, the facts, on which Dion relies for her
due process and ADA claim were integral to the administrative process. Dion could and
should have emphasized the need for assistance and the provision of records to DSHS
during the administrative hearing or on judicial review of the ALJ’s ruling.
We review the elements of res judicata out of order. We first address identity of
parties. DSHS was not a named party in the 2018 administrative proceeding.
Nevertheless, DSHS functioned as the plaintiff that prosecuted the demand for payment
of child support. The rule of identity of parties does not demand that each party be a
named party in both proceedings. The rule may benefit one in control of the litigation.
Stevens County v. Futurewise, 146 Wn. App. 493, 504, 192 P.3d 1 (2008).
Dion Blackburn does not argue that DSHS was not a party to the 2018
administrative proceeding. Since Dion and DSHS litigate in their respective individual
and governmental capacities in both procedures, we further hold that the quality of the
parties corresponds in the 2018 proceeding and this lawsuit.
Dion Blackburn asserts that facts relevant to her civil suit differ from the facts
presented during the 2018 administrative process. Whereas, this argument is literally true
in that the ALJ did not rely on the facts now before this court, the argument fails to show
that the facts transpired during the administrative proceeding. The facts Dion now asserts
about her need for assistance were facts observed by the ALJ during the 2018 hearing. If
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one objects to the ongoing process before a court or hearing examiner, the law expects
one to object at the time of the process. We highlight that Dion asked the ALJ, during the
2016 hearing, whether she should present psychological records she now wishes DSHS
would have forwarded. The ALJ may have committed error when responding that he did
not need the records, but any error should have been appealed and was not the fault of
DSHS.
The problematic res judicata factor for this appeal is the second factor of an
identity of the cause of action. If we took this requirement literally, we would hold that
the proceedings lack this identity. Washington law does not necessarily define the term
“cause of action” for purposes of res judicata. In other contexts, the Washington courts
have referred to a “cause of action” as the act that occasioned the injury, McFarling v.
Evaneski, 141 Wn. App. 400, 405, 171 P.3d 497 (2007), and a legal right of the plaintiff
invaded by the defendant. Cowley v. Northern Pacific Railway Co., 68 Wash. 558, 563,
123 P. 998 (1912). Black’s Law Dictionary defines the term as “[a] group of operative
facts giving rise to one or more bases for suing; a factual situation that entitles one person
to obtain a remedy in court from another person; claim.” BLACK’S LAW
DICTIONARY 266 (10th ed. 2014). These definitions fit awkwardly into the relationship
between the administrative hearings and Dion Blackburn civil suit. The operative facts of
the administrative hearing were the income of Dion and Brad Blackburn and their ability
to work. The operative facts in the pending suit include any disability of Dion, her
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No. 39012-8-III
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tendering a letter from a treatment provider to DSHS to forward to the ALJ, and her
appearance and performance during the two administrative hearings.
The res judicata doctrine either redefines or undefines the term “cause of action”
as found in other settings. Washington utilizes no specific test for determining identity of
causes of action. Rains v. State, 100 Wn.2d 660, 663-64 (1983). Consideration of four
factors provide an analytical tool for determining whether two causes of action are
identical for purposes of res judicata: (1) whether rights or interests established in the
prior judgment would be destroyed or impaired by prosecution of the second action, (2)
whether substantially the same evidence is presented in the two actions, (3) whether the
two suits involve infringement of the same right, and (4) whether the two suits arise out
of the same transactional nucleus of facts. Berschauer Phillips Construction Co. v.
Mutual of Enumclaw Insurance Co., 175 Wn. App. 222, 230 (2013). All four elements
need not be present to bar the second legal action. Rains v. State, 100 Wn.2d 660, 664
(1983)
Dion Blackburn’s failure to assert a due process or ADA argument in the
administrative actions does not impede enforcement of res judicata. Res judicata applies
to actions, including § 1983 actions, with respect to the issues actually litigated and also
issues that could have been but were not litigated in the state court proceedings. Migra v.
Warren City School District Board of Education, 465 U.S. 75 (1984); Berschauer
Phillips Construction Co. v. Mutual of Enumclaw Insurance Co., 175 Wn. App. 222, 227-
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No. 39012-8-III
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28 (2013). Res judicata applies not only to points on which the court was actually
required by the parties to form an opinion and pronounce a judgment, but to every point
that properly belonged to the subject of the litigation, and which the parties, exercising
reasonable diligence, might have brought forward at that time. Sound Built Homes, Inc.
v. Windermere Real Estate/South, Inc., 118 Wn. App. 617, 631 n.28, 72 P.3d 788 (2003).
Although many tests have been suggested for determining whether a matter should
have been litigated in a prior proceeding, there is no simple or all-inclusive test. Kelly-
Hansen v. Kelly-Hansen, 87 Wn. App. 320, 330, 941 P.2d 1108 (1997). The controlling
factors actually echo the factors reviewed when determining if the two suits entail the
same cause of action. When determining if an argument should have been raised before,
courts consider a variety of factors, including, whether the present and prior proceedings
arise out of the same facts, whether they involve substantially the same evidence, and
whether rights or interests established in the first proceeding would be destroyed or
impaired by completing the second proceeding. Kelly-Hansen v. Kelly-Hansen, 87 Wn.
App. 320, 330 (1997). A matter should have been raised and decided earlier if it is
merely an alternate theory of recovery or an alternate remedy. Kelly-Hansen v. Kelly-
Hansen, 87 Wn. App. at 331. A plaintiff may not reinstitute, against the same parties, the
same cause of action based on the same array of facts merely by changing legal theories
and sovereignties. Howe v. Brouse, 422 F.2d 347, 348 (8th Cir. 1970).
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The following principles particularly bear importance in Dion Blackburn’s
superior court civil suit. When a party should reasonably foresee that an adverse state
court judgment will create a constitutional issue, that issue should be argued before the
state court. Roy v. City of Augusta, 712 F.2d 1517, 1521 (1st Cir. 1983); Eugster v.
Washington State Bar Association, 198 Wn. App. 758, 790 (2017). Otherwise, the
principles of res judicata will bar a party from later raising the constitutional claim
against the same parties in an action under § 1983. Roy v. City of Augusta, 712 F.2d
1571, 1521 (1st Cir. 1983); Eugster v. Washington State Bar Association, 198 Wn. App.
758, 790-91 (2017). The principle of res judicata that bars claims that might have been
raised extends to a defendant in an earlier civil suit who failed to raise a defense based on
the constitution. Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir. 1974); Eugster v.
Washington State Bar Association, 198 Wn. App. 758, 791 (2017). This principle even
extends to defenses that a party could have raised in an administrative proceeding.
Krison v. Nehls, 767 F.2d 344, 348 (7th Cir. 1985); Eugster v. Washington State Bar
Association, 198 Wn. App. 758, 791 (2017).
We deem Eugster v. Washington State Bar Association controlling. Attorney
Stephen Eugster initiated suit against the Washington State Bar Association (WSBA), the
association’s director, and disciplinary counsel. The WSBA had previously brought a
disciplinary proceeding against him and suspended his license to practice law. In his
civil lawsuit, Eugster asserted that the discipline system violated his due process and First
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No. 39012-8-III
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Amendment rights under the United States Constitution. We dismissed the lawsuit based
on res judicata, despite the nucleus of facts before the WSBA administrative process not
entailing facts relevant to Eugster’s First Amendment and due process theories of
recovery. We also applied res judicata despite Eugster not enjoying the opportunity to
garner damages for violation of his constitutional rights during the administrative
process. Res judicata barred Eugster’s action because he could have and should have
raised his challenges to the disciplinary process during the earlier WSBA proceeding
against him. In so ruling, this court cited numerous federal decisions that res judicata
barred an attorney’s suit for due process violations during a professional disciplinary
proceeding because the attorney could raise the constitutional during the administrative
process. We reasoned that the policy against harassment by multiple suits applied with
equal force when a party to an earlier administrative proceeding files an independent
action to raise an issue that she could have raised in the administrative process.
Dion Blackburn claims she does not challenge the child support obligation
imposed on her during either the 2016 or the 2018 administrative proceedings.
Nevertheless, Dion could have raised her constitutional and ADA challenges in the
administrative hearings. An administrative proceeding may be the same cause of action
the first proceeding as a later suit challenging the process employed during the
proceeding. Eugster v. Washington State Bar Association, 198 Wn. App. 758, 791
(2017).
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Dion Blackburn underscores that she could not have recovered damages for
constitutional or ADA infringements during the child support process arrayed against her
before the OAH. RCW 34.05.510. Nevertheless, the same would have been true for the
attorney plaintiff in Eugster v. Washington State Bar Association, 198 Wn. App. 758, 791
(2017). This court in Eugster suggested that Stephen Eugster might have filed a later
action for damages against the WSBA if he had prevailed in the disciplinary proceeding
by showing a denial of his due process rights.
In Vandenplas v. City of Muskego, 753 F.2d 555 (7th Cir. 1985), the city obtained
a state court order authorizing the razing of Lawrence Vandenplas’ farm buildings.
After the razing, Vandenplas sued the city and alleged that the destruction of his
buildings resulted from his criticism of the city and thus breached his due process, equal
protection, and First Amendment rights. The federal court summarily dismissed
Vandenplas’ suit on the basis of res judicata. Vandenplas could have raised his
constitutional arguments as defenses in the state court action. Although the state court
could not have awarded Vandenplas damages for the constitutional violations, if
Vandenplas had prevailed on the constitutional issues, the city would have been
precluded from razing the buildings and thereby Vandenplas would have averted damage.
So too if Dion Blackburn had raised and prevailed on her due process and ADA claims
before the ALJ, she would have averted the damage for which she now sues.
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Unlike its sister doctrine, collateral estoppel, res judicata does not possess the
element of fairness. Malland v. Department of Retirement Systems, 103 Wn.2d 484, 489,
694 P.2d 16 (1985); Mendoza v. Expert Janitorial Services, LLC, 11 Wn. App. 2d 32, 37,
450 P.3d 1220 (2019), review denied, 195 Wn.2d 1014, 461 P.3d 1198 (2020). Still, we
would worry about working an injustice and would be hesitant to affirm dismissal of
Dion Blackburn’s suit if we deemed that Dion’s disability prevented her from arguing,
during the administrative hearing, that her disability precluded her from gainful
employment or from asking the ALJ to review medical records. But she argued that she
could not temporarily work and testified to her disability. She also conceded that she
could have returned to work if not for the need to attend court hearings, not because of
her disability. Dion filed a civil complaint, without the assistance of an attorney or an
ADA coordinator, in superior court, wherein she asserted the same arguments. She was
capable of filing records in the suit.
Dion Blackburn appealed the 2016 DCS order to the Thurston County Superior
Court. As part of the appeal, she alleged that DSHS and OAH violated her ADA rights.
Thus, she knew during the 2018 proceeding to assert those rights and in fact asked for
some accommodations that OAH granted. Finally, during the 2018 administrative
process, Dion ably filed public records requests with DSHS.
Dion Blackburn could have appealed the 2018 DCS order to the superior court.
As part of the appeal, Dion could have presented evidence outside the record to support
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her claimed need for assistance before the OAH. RCW 34.05.562. A petition for judicial
review under Washington’s administrative procedure act may allege the invalidity of an
agency action because of the agency’s erroneous interpretation or application of the law.
RCW 34.05.570(3)(d).
Statute of Limitations
DSHS raises the statute of limitations as one reason for dismissal of that portion of
the claims based on the 2016 administrative hearing. Because we dismiss all claims
against DSHS, other than the PRA cause of action, on the basis of res judicata, quasi-
judicial immunity or sovereign immunity, we do not address the statute of limitations.
Public Records Act
DSHS contends that the trial court properly dismissed Dion Blankburn’s PRA
claims as premature, but acquiesces that the trial court should not have dismissed those
claims with prejudice. Dion’s complaint only implicated an inadequate response to her
second public records request originally submitted January 11, 2019. DSHS continued to
produce records responsive to the January 11, 2019 request when Dion initially filed her
complaint.
Denial of a requested record is a prerequisite for filing an action for judicial
review of an agency decision under the PRA. Hobbs v. State, 183 Wn. App. 925, 936,
335 P.3d 1004 (2014); RCW 42.56.550(1). Only after an agency has taken final action,
or inaction, indicating the nonproduction of responsive records will a PRA lawsuit lie.
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Hobbs v. State, 183 Wn. App. 925, 936 (2014). DSHS took no final action while it
continued to provide responsive records in installments.
CONCLUSION
After an interminable analysis, we affirm the superior court’s dismissal of Dion
Blackburn’s claims for negligence, violations of the ADA, and denial of due process with
prejudice. We remand to the superior court to dismiss Dion’s PRA cause of action
without prejudice, instead of with prejudice.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, C.J.
______________________________
Lawrence-Berrey, J.
60