Respondents Brief — Brian Green, Petitioner v. Pierce County, Washington
Supreme Court briefFeb 14, 2022
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No. 21-614
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------BRIAN GREEN,
Petitioner,
v.
PIERCE COUNTY WASHINGTON,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The Supreme Court Of Washington
---------------------------------♦--------------------------------BRIEF FOR THE RESPONDENT IN OPPOSITION
---------------------------------♦--------------------------------MARY E. ROBNETT
Pierce County Prosecuting Attorney
DANIEL R. HAMILTON
Deputy Prosecuting Attorney
Counsel of Record
FRANK A. CORNELIUS
Deputy Prosecuting Attorney
PIERCE COUNTY PROSECUTOR’S OFFICE
955 Tacoma Avenue South, Ste. 301
Tacoma, WA 98402
253-798-7746
dan.hamilton@piercecountywa.gov
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Petitioner brought suit in state court under a state
public records act (“PRA”) seeking statutorily protected photographs and birthdates of criminal justice
employees “inten[ding] to . . . convey[ ]” their personal
information on YouTube “to a broad segment of the
public.” He claimed his social media activity entitled
him to a statutory “news media” exception from the
protection. Petitioner repeatedly insisted he was
“using the First Amendment to construe” the statutory
privilege in general, but denied “making a Constitutional challenge” to its validity. As a result, in dismissing his PRA suit the Washington Supreme Court
did not address the constitutionality of the statutory
media privilege but interpreted its requirements and
found Petitioner had not met them.
The question presented is: Where a Petitioner
brings a state PRA action alleging entitlement to a
statutory “news media” privilege to access otherwise
protected photographs and birthdates of criminal justice employees but disavows making a “constitutional
challenge” to the validity of the statutory privilege, and
the state’s highest court dismisses the PRA action
because Petitioner does not meet the statute’s requirements, should this Court grant certiorari because
Petitioner now claims the First Amendment dictates
he be treated as privileged “news media” due to his use
of social media?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .....................................
i
TABLE OF AUTHORITIES ...................................
v
INTRODUCTION ...................................................
2
STATEMENT OF THE CASE ................................
2
STATUTORY HISTORY ..................................
2
Officer Birthdates and Photographs Protected After Mass Murder of Police ..............
2
FACTUAL BACKGROUND................................
6
Green Targets His Officers With PRA
Request ............................................................
6
PROCEDURAL HISTORY .................................
7
Trial Court: PRA Suit Filed so Green Could
“Convey” Officers’ Birthdates and Photographs to a “Broad Segment of the Public” ....
7
Appellate Argument: Green Argues First
Amendment Only as Aid to Statutory Construction and Denies Making “Constitutional
Challenge” ........................................................
9
Washington Supreme Court: Decision and Dissent Agree Only Issue is Statutory Meaning
of “Entity,” Not Violation of Constitution ...... 12
ARGUMENT ...........................................................
A.
15
This Case is an Extraordinarily Poor
Vehicle for Addressing the Question Presented Concerning “News Media’s”
Supposed First Amendment Privilege to
Public Records ........................................... 15
iii
TABLE OF CONTENTS – Continued
Page
1. By Expressly Denying He was Making
a First Amendment Challenge in State
Court, Green is Precluded From
Making it Now ..................................... 15
2. Striking Down “News Media” Exception
as Unconstitutional Would Still Require
Affirming Dismissal Since Officer Birth
Dates and Photos Would Then be
Protected From All Requesters ............. 19
3. Existence of Other Independent and
Adequate State Grounds ....................... 23
B.
No First Amendment Right to Access
Protected Records Just Because Requester
Uses Social Media and Claims to Be “News
Media” .......................................................... 26
1. State Decision Follows this Court’s
Precedent While Petitioner Ignores and
Mischaracterizes it ............................... 26
2. Statutory Definition of “News Media”
Does not Discriminate Based on Content ......................................................... 31
3. Petitioner Identifies no Relevant Circuit Court Split ...................................... 33
4. Protections Against Doxing Pose no
Threat to Citizen Journalism or to
Accessing News and Commentary ........ 35
CONCLUSION .......................................................
37
iv
TABLE OF CONTENTS – Continued
Page
APPENDIX
12/14/2018 Complaint for Disclosure Under the
Public Records Act ........................................... App. 1
06/10/2019 Brian Green’s Declaration .............. App. 20
06/10/2019 Joseph Thomas’ Declaration........... App. 22
06/10/2019 Respondent’s Motion for Sanctions
Against Mr. Cornelius Pursuant to RAP
18.9(A) ............................................................ App. 25
11/01/2019 Appellant’s Opening Brief .............. App. 30
02/06/2020 Amicus Curiae Memorandum of
Allied Daily Newspapers of Washington ....... App. 69
09/14/2020 Amicus Curiae Memorandum of
Washington State Association of Broadcasters, Radio Television Digital News
Association and Washington Newspaper
Publishers Association ................................... App. 72
v
TABLE OF AUTHORITIES
Page
CASES
Adams v. Robertson, 520 U.S. 83 (1997) .....................17
Allen v. Louisiana, 103 U.S. 80 (1881)........................20
Allen v. Wright, 468 U.S. 737 (1984) ...........................26
Am. Broad. Cos., Inc. v. Cuomo, 570 F.2d 1080
(2d Cir. 1977) ...........................................................34
Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.
1986) ........................................................................34
Ass’n of Washington Bus. v. Washington State
Dep’t of Ecology, 195 Wash.2d 1, 455 P.3d 1126
(2020) .......................................................................21
Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct.
2335 (2020) ..............................................................32
Bellotti v. Baird, 443 U.S. 622 (1979) .........................18
Boardman v. Inslee, 354 F. Supp. 3d 1232 (W.D.
Wash. 2019), aff ’d, 978 F.3d 1092 (9th Cir.
2020) ........................................................................29
Branzburg v. Hayes, 408 U.S. 665 (1972) ............. 19, 27
Brockett v. Spokane Arcades, Inc., 472 U.S. 491
(1985) .......................................................................20
Brown v. Ohio, 432 U.S. 161 (1977) ............................18
Buckley v. Valeo, 424 U.S. 1 (1976) .............................20
Citizens United v. FEC, 558 U.S. 310 (2010) .... 29, 30, 31
Clark v. Martinez, 543 U.S. 371 (2005)................. 16, 17
vi
TABLE OF AUTHORITIES – Continued
Page
Cortland v. Pierce Cty., 488 F. Supp. 3d 1027,
1029 (W.D. Wash. 2020), reconsideration
denied, C20-5155RJB, 2020 WL 5909808
(W.D. Wash. Oct. 6, 2020) ............................ 31, 32, 33
Dep’t of Ecology v. Campbell & Gwinn, LLC, 146
Wash.2d 1, 43 P.3d 4 (2002) ....................................12
Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct.
2246 (2020) ..............................................................17
Espinoza v. Montana Dep’t of Revenue, 393
Mont. 446, 435 P.3d 603 (2018) ...............................17
Fed. Energy Admin. v. Algonquin SNG, Inc., 426
U.S. 548 (1976) ..........................................................5
Field v. Clark, 143 U.S. 649 (1892) .............................20
Gipson v. Snohomish Cty., 194 Wash.2d 365, 449
P.3d 1055 (2019) ......................................................24
Guard v. Jackson, 83 Wash. App. 325, 921 P.2d
544 (1996), aff ’d, 132 Wash.2d 660, 940 P.2d
642 (1997) ................................................................21
Guillen v. Pierce County, 144 Wash.2d 696, 31
P.3d 628 (2001), reversed in part on other
grounds, 537 U.S. 129 (2003) ..................................24
Haberman v. Washington Pub. Power Supply
Sys., 109 Wash.2d 107, 744 P.2d 1032 (1987),
amended, 109 Wash.2d 107 (1988) .........................26
Herb v. Pitcairn, 324 U.S. 117 (1945) .........................23
Houchins v. KQED, Inc., 438 U.S. 1 (1978) ......... passim
vii
TABLE OF AUTHORITIES – Continued
Page
Illinois v. Gates, 462 U.S. 213 (1983), rehearing
denied 463 U.S. 1237 (1983)....................................18
In re Heath, 144 U.S. 92 (1892) ..................................20
In re Marriage of Kovacs, 121 Wash.2d 795, 854
P.2d 629 (1993) ..........................................................5
In re Parentage of C.A.M.A., 154 Wash.2d 52, 109
P.3d 405 (2005) ........................................................15
Jackson v. Quality Loan Serv. Corp., 186 Wash.
App. 838, 347 P.3d 487 (2015) ...................................8
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .............17
Jevne v. Pass, LLC, 3 Wash. App. 2d 561, 416 P.3d
1257 (2018) ..............................................................26
John K. MacIver Inst. for Pub. Policy, Inc. v.
Evers, 994 F.3d 602 (7th Cir. 2021), cert.
denied, 142 S. Ct. 711 (2021) ..................................34
Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020) .........34
Koenig v. Pierce Cty., 151 Wash. App. 221, 211
P.3d 423 (2009), as amended (July 20, 2009),
as amended on denial of reconsideration (Oct.
26, 2009) ..................................................................25
Leavitt v. Jane L., 518 U.S. 137 (1996) .......................20
Los Angeles Police Dept. v. United Reporting
Publishing Corp., 528 U.S. 32 (1999) .............. passim
Lowy v. PeaceHealth, 174 Wash.2d 769, 280 P.3d
1078 (2012) ................................................................4
McBurney v. Young, 569 U.S. 221 (2013) ....................27
viii
TABLE OF AUTHORITIES – Continued
Page
McConnell v. Fed. Election Comm’n, 540 U.S. 93
(2003) .......................................................................30
McGowan v. State, 148 Wash.2d 278, 60 P.3d 67
(2002) .......................................................................21
Mullaney v. Wilbur, 421 U.S. 684 (1975) ....................18
Murdock v. City of Memphis, 87 U.S. 590
(1875) ................................................................ 18, 23
National Collegiate Athletic Assn. v. Smith, 525
U.S. 459 (1999) ........................................................17
National Woodwork Mfrs. Assn. v. NLRB, 386
U.S. 612 (1967) ..........................................................5
New York State Club Ass’n, Inc. v. City of New
York, 487 U.S. 1 (1988) ..............................................8
NLRB v. Catholic Bishop of Chicago, 440 U.S.
490 (1979) ................................................................16
Oliver v. Harborview Med. Ctr., 94 Wash.2d 559,
618 P.2d 76 (1980) ...................................................24
Pierce Cty., Wash. v. Guillen, 537 U.S. 129
(2003) .......................................................................17
Poulos v. New Hampshire, 345 U.S. 395 (1953) .........18
Price v. Kitsap Transit, 125 Wash.2d 456, 886
P.2d 556 (1994) ..........................................................5
Reed v. Town of Gilbert, 576 U.S. 155 (2015) .............32
Republic of Kazakhstan v. Does 1-100, 192 Wash.
App. 773, 368 P.3d 524 (2016) .................................24
Rodriguez v. Barr, 488 F. Supp. 3d 1027 (2020).........32
ix
TABLE OF AUTHORITIES – Continued
Page
Schwegmann Bros. v. Calvert Distillers Corp.,
341 U.S. 384 (1951) ...................................................5
Sheehan v. Cent. Puget Sound Reg’l Transit
Auth., 155 Wash.2d 790, 123 P.3d 88 (2005) ............5
State v. Anderson, 81 Wash.2d 234, 501 P.2d 184
(1972) .......................................................................21
State v. Burden, 120 Wash.2d 371, 841 P.2d 758
(1992) .........................................................................4
State v. Chester, 133 Wash.2d 15, 940 P.2d 1374
(1997) .......................................................................14
State v. Jenks, 197 Wash.2d 708, 487 P.3d 482
(2021) .......................................................................14
State v. Williams, 144 Wash.2d 197, 26 P.3d 890
(2001) .......................................................................21
State v. Wright, 84 Wash.2d 645, 529 P.2d 453
(1974) .........................................................................5
Thomas v. Pierce Cty. Prosecuting Attorney’s
Office, 190 Wash. App. 1036 (2015) .........................25
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622
(1994) .......................................................................32
Unemployment Comp. Dep’t v. Hunt, 17 Wash.2d
228, 135 P.2d 89 (1943) ...........................................22
United States v. Apel, 571 U.S. 359 (2014) .................16
United States v. Carolene Products Co., 304 U.S.
144 (1938) ..................................................................8
United States v. Hoffman, 154 Wash.2d 730, 116
P.3d 999 (2005), as amended (Aug. 25, 2005) .........21
x
TABLE OF AUTHORITIES – Continued
Page
Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182
(1990) .......................................................................19
Vance v. Bradley, 440 U.S. 93 (1979) ............................8
Virginia v. Hicks, 539 U.S. 113 (2003) ........................20
Wainwright v. Goode, 464 U.S. 78 (1983) ...................18
Wash. State Leg. v. Lowry, 131 Wash.2d 309, 931
P.2d 885 (1997) ..........................................................5
Washington Pub. Employees Ass’n v. Washington
State Ctr. for Childhood Deafness & Hearing
Loss, 1 Wash. App. 2d 225, 404 P.3d 111 (2017),
overruled on other grounds, 194 Wash.2d 484
(2019) .........................................................................2
Washington Pub. Employees Ass’n v. Washington
State Ctr. for Childhood Deafness & Hearing
Loss, 194 Wash.2d 484, 450 P.3d 601 (2019) ...... 3, 36
Webb v. Webb, 451 U.S. 493 (1981) ..............................18
Winters v. New York, 333 U.S. 507 (1948) ...................18
Zemel v. Rusk, 381 U.S. 1 (1965) ................................19
CONSTITUTIONAL PROVISIONS
First Amendment................................................ passim
Fifth Amendment .......................................................34
Fourteenth Amendment ....................................... 14, 27
xi
TABLE OF AUTHORITIES – Continued
Page
STATUTES
Ky. Rev. Stat. Ann. § 525.085 (2021)...........................36
Nev. Rev. Stat. Ann. § 41.1347 (2021).........................36
Okla. Stat. Ann. tit. 21, § 1176 (2021) ........................36
Or. Rev. Stat. Ann. § Ch. 300, § 1 (2021) ....................36
Washington Revised Code § 42.56.080(2) ..................24
Washington Revised Code § 42.56.210(2) ..................24
Washington Revised Code § 42.56.250 .............. 3, 7, 21
Washington Revised Code § 42.56.250(8) .......... passim
Washington Revised Code § 42.56.550 .................. 7, 10
Washington Revised Code § 5.68.010 .................... 9, 11
Washington Revised Code § 5.68.010(5) ............ passim
Washington Revised Code § 5.68.010(8) ....................10
Washington Revised Code § 7.24.110 ..........................8
RULES
US Supreme Court Rule 24(1)(j) ..................................1
OTHER AUTHORITIES
“Percentage of U.S. population who currently
use any social media from 2008 to 2021.”
https://www.statista.com/statistics/273476/
percentage-of-us-population-with-a-socialnetwork-profile/ .........................................................5
xii
TABLE OF AUTHORITIES – Continued
Page
2B Sutherland Statutory Construction § 51:8
(7th ed.) ...................................................................20
Bree Nordenson, Columbia Journalism Review,
“A New Shields Law in Washington State,”
5/4/2007, https://archives.cjr.org/behind_the_
news/a_new_shield_law_in_washington.php ...........5
H.B. Rep., Engrossed Second Substitute 1317,
61st Leg., Reg. Sess. (Wash. 2010) ............................4
H.B. Rep., HB 1888, 66th Leg., Reg. Sess. (Wash.
2020) .................................................................... 3, 36
https://www.supremecourt.gov/publicinfo/press/
media_requirements_and_procedures_revised_
070717.pdf ...............................................................33
Jason A. Martin & Anthony L. Fargo, Rebooting
Shield Laws: Updating Journalist’s Privilege
to Reflect the Realities of Digital Newsgathering, 24 U. Fla. J.L. & Pub. Pol’y 47
(2013) .........................................................................4
Levit and Rosch, THE CYBERSLEUTH’S
GUIDE TO THE INTERNET: INTERNET
FOR LAWYERS, 407-08 (2017) ................................3
Merriam Webster, https://www.merriam-webster.
com/dictionary/dox ..................................................35
S.B. Rep., Engrossed Second Substitute 1317,
61st Leg., Reg. Sess. (Wash. 2010) ........ 2, 3, 4, 21, 36
S.B. Rep., Second Substitute H.B. 1888, 66th
Leg., Reg. Sess. (Wash. 2020) .............................. 3, 36
xiii
TABLE OF AUTHORITIES – Continued
Page
Simone Alicea, “What Legal Protections Do Reporters Have?,” https://www.knkx.org/politics/
2017-03-13/unpacking-government-what-legalprotections-do-reporters-have (2017) .......................6
Vermeule, Saving Constructions, 85 Geo. L.J.
1945 (1997) ..............................................................16
1
INTRODUCTION
Petitioner Brian Green seeks certiorari by mischaracterizing his state action as “relying in large part
on his First Amendment claims.” See Pet. 10. Instead,
he brought a single unsuccessful state PRA suit
wherein he only briefly raised the First Amendment
for purposes of constitutional avoidance to support his
misreading of the applicable statute. See Pet. App. 71a73a; Resp. App. 20, 23, 26-28. Thus, in this Court he can
neither now make a constitutional challenge nor
obtain a different statutory interpretation. Further,
had he challenged the constitutionality of the statute
and succeeded, striking down the part of the statute at
issue would not have prevented dismissal of his
complaint’s only cause of action – i.e. a PRA suit to
obtain protected personal records of officers. This lack
of a remedy in this Court is confirmed by Petitioner’s
failure to identify any material relief he could obtain
other than an advisory opinion on a constitutional
challenge he never previously made. Compare Pet. 2930 with Rule 24(1)(j).
Finally, Green’s proposed advisory opinion would
require reversal of this Court’s long settled precedent
– about which Petitioner makes no mention and
shows no Circuit Court split – as well as undermine
state shield statutes and create a constitutional public
record duty that this Court has consistently rejected.
---------------------------------♦---------------------------------
2
STATEMENT OF THE CASE
STATUTORY HISTORY
Officer Birthdates and Photographs Protected After Mass Murder of Police
In 2009, four police officers were targeted and
gunned down at a Pierce County coffee shop. Resp.
App. 36. It was reported that the murderer’s family
and friends helped him evade capture and that during
the manhunt the police department was barraged with
information requests on officers and their families –
including from the murderer’s family. S.B. Rep.,
Engrossed Second Substitute 1317, 61st Leg., Reg.
Sess. (Wash. 2010).
On recommendation of the Governor’s task force,
the Legislature took testimony and further found: “The
public disclosure process, specifically background
information and photographs, in the hands of an
inmate is used as a weapon to get back” at correctional
staff. Id. Accordingly, “staff is very concerned about
their personal information being given to inmates, and
this tension then affects the overall environment in
correctional facilities.” Id.1 Legislation was deemed
1
Another Washington appellate court noted: “Such
disclosure to the public would not be voluntary or within the
employees’ control” and once in “the public domain, these
employees would potentially be subject to an ongoing risk of
identity theft and other harms from the disclosure of this personal
information, such as their . . . personal telephone numbers.”
Washington Pub. Employees Ass’n v. Washington State Ctr. for
Childhood Deafness & Hearing Loss, 1 Wash. App. 2d 225, 404
3
necessary because “[i]nmates and other parties use
[requests] to target and endanger individuals and
families.” Id. The Washington Supreme Court later
agreed “there are legitimate concerns about the
misappropriation of birth dates” because “disclosing
birth dates with corresponding employee names may
allow PRA requesters or others to obtain residential
addresses and to potentially access financial information, retirement accounts, health care records or
other employee records.” Washington Pub. Employees
Ass’n v. Washington State Ctr. for Childhood Deafness
& Hearing Loss, 194 Wash.2d 484, 493, 499, 450 P.3d
601 (2019).2
Accordingly, Washington Revised Code § 42.56.250
was amended to protect both “[p]hotographs and
month and year of birth in the personnel files of employees and workers of criminal justice agencies.”3
P.3d 111 (2017), overruled on other grounds, 194 Wash.2d 484
(2019).
2
A similar risk exists from release of officer photographs.
Levit and Rosch, THE CYBERSLEUTH’S GUIDE TO THE
INTERNET: INTERNET FOR LAWYERS, 407-08 (2017)
(Google’s “Search by Images” allows use of a person’s photograph
alone to “practically create[ ] a dossier of [the subject], using
images instead of text.”)
3
Before the decision below, the Legislature extended
§ 42.56.250(8)’s protections to “employees or volunteers of a public
agency.” See 2020 c 106, § 1. Testimony before that body showed
disclosure of birthdates and photographs put state employees “in
danger of being retaliated against” and “at risk of identity theft
and harassment . . . due to modern cybersecurity concerns.” H.B.
Rep., HB 1888, 66th Leg., Reg. Sess. (Wash. 2020); S.B. Rep.,
Second Substitute H.B. 1888, 66th Leg., Reg. Sess. (Wash. 2020).
The Legislature recognized “no other employer would send out all
4
Having been enacted in response to the murders of
police, its purpose “is all about officer safety.” S.B. Rep.,
supra. However, legislators recognized “the name and
date-of-birth” also were “two necessary identifiers”
permitting newspapers to “match[ ] up the employees
of criminal justice agencies with the database of
criminal convictions, and arrests” to report “how
criminal justice employees were treated in these
cases.” H.B. Rep., Engrossed Second Substitute 1317,
61st Leg., Reg. Sess. (Wash. 2010). Thus, the amended
statute provides an exception for “news media, as
defined in RCW 5.68.010(5), [to] have access to the
photographs and full date of birth.” See id.;
§ 42.56.250(8) (emphasis added).
The “news media” definition incorporated into the
PRA statute is from the state’s evidentiary “shield
law” governing when “compulsory process may compel
the news media to testify, produce, or otherwise
disclose” certain information. See Wash. Rev. Code
§ 5.68.010(5). This narrow definition4 was used
this information” and extending the protection was necessary for
“the safety and privacy of one in ten Washingtonians.” Id.
4
Washington evidentiary privileges “are narrowly construed
to serve their purposes so as to exclude the least amount of
relevant evidence.” Lowy v. PeaceHealth, 174 Wash.2d 769, 787,
280 P.3d 1078 (2012) (quoting State v. Burden, 120 Wash.2d 371,
376, 841 P.2d 758 (1992)). See also Jason A. Martin & Anthony L.
Fargo, Rebooting Shield Laws: Updating Journalist’s Privilege to
Reflect the Realities of Digital Newsgathering, 24 U. Fla. J.L. &
Pub. Pol’y 47, 66 (2013) (“because the journalist’s privilege, or any
other privilege for that matter, limits the testimony that might be
obtained in a court of law or similar proceedings, the privilege
should be narrowly interpreted.”) Similarly, “exceptions to the
5
because, as its “primary author” explained:5 the Legislature needed a “workable definition so you wouldn’t
provide a privilege to virtually anybody in the state
who has a MySpace account,” and no legislator wanted
“ordinary people in their pajamas to be able to claim
journalistic” evidentiary privileges unavailable to the
public.6 See Bree Nordenson, Columbia Journalism
general terms of the statute to which they are appended . . .
should be strictly construed with any doubt to be resolved in favor
of the general provisions, rather than the exceptions.” State v.
Wright, 84 Wash.2d 645, 652, 529 P.2d 453 (1974); see also Wash.
State Leg. v. Lowry, 131 Wash.2d 309, 327, 931 P.2d 885 (1997).
The Legislature is presumed to have known these “narrow
construction” rules would apply when it incorporated the
reporter’s shield statute into § 42.56.250(8). See Sheehan v. Cent.
Puget Sound Reg’l Transit Auth., 155 Wash.2d 790, 811, 123 P.3d
88 (2005) (“We presume that the legislature knows the existing
state of the case law in the areas in which it legislates”) (citing
Price v. Kitsap Transit, 125 Wash.2d 456, 463, 886 P.2d 556
(1994)).
5
The “remarks of [an author], a prime sponsor and drafter
of the bill, are appropriately considered to determine the purpose
of revisions to the language of the proposed act.” In re Marriage
of Kovacs, 121 Wash.2d 795, 807-08, 854 P.2d 629 (1993). See also
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564
(1976) (“statement of one of the legislation’s sponsors . . .
deserves to be accorded substantial weight in interpreting the
statute”) (citing National Woodwork Mfrs. Assn. v. NLRB, 386
U.S. 612, 640 (1967); Schwegmann Bros. v. Calvert Distillers
Corp., 341 U.S. 384, 394-395 (1951)).
6
Petitioner is among the 82% of Americans (i.e. 223 million)
who as of 2020 had at least one such account, and among the 4.2
billion social media users worldwide as of January 2021. See
“Percentage of U.S. population who currently use any social media
from 2008 to 2021.” https://www.statista.com/statistics/273476/
percentage-of-us-population-with-a-social-network-profile/. YouTube
had “2.3 billion” users. See id.
6
Review, “A New Shields Law in Washington State,”
5/4/2007, https://archives.cjr.org/behind_the_news/a_new_
shield_law_in_washington.php; Simone Alicea, “What
Legal Protections Do Reporters Have?,” https://www.
knkx.org/politics/2017-03-13/unpacking-governmentwhat-legal-protections-do-reporters-have (2017).
FACTUAL BACKGROUND
Green Targets His Officers With PRA
Request
Green was arrested for obstructing a sheriff ’s
deputy and incarcerated at the Pierce County jail for
approximately 24 hours from November 26 through 27,
2014. Resp. App. 39.7 Over three years after his release,
he made a PRA request to the Sheriff ’s Department
targeting correctional staff and deputies working at
the time of his incarceration. Id. at 39.
Green sought: “Any and all records of official
photos and/or birth date and/or rank and/or position
and/or badge number and/or hired and/or ID Badge for
all detention center and/or jail personnel and/or
deputies on duty November 26 & 27 2014.” Pet. App. 3a
(emphasis added). Though his request’s signature line
gave himself the title “Investigative Journalist,” he
also stated “[n]one of the following request(s) for
documents will be used for commercial purposes.”
Resp. App. 9. Green’s request came from the email
7
Criminal charges were filed, but later dismissed without
prejudice. Id. n. 6.
7
address for his musical band, briangreenband@tds.net,
and gave no indication of any association with a news
media entity or that the title “Investigative Journalist”
had significance to the request involving his own
incarceration. Id.
In responding, the Department provided 11 pages
of records with a letter notifying Green: “The records
do not include the dates of birth or the official photos
of our Corrections Staff. Per RCW 42.56.250[ ],
photographs and dates of birth in personnel files of
employees and workers of criminal justice agencies are
exempt.” Id. 8-9 (emphasis in original). The letter
advised it was the final definitive response and that his
request was closed. Id.8
PROCEDURAL HISTORY
Trial Court: PRA Suit Filed so Green Could
“Convey” Officers’ Birthdates and Photographs to a “Broad Segment of the Public”
Almost a year later, Petitioner filed a “Complaint
for Disclosure under the Public Records Act.” Id. at 1.
Green was the only plaintiff and his complaint sought
relief exclusively under § 42.56.550 of the state PRA
8
Only after the request was closed did Green allege he was
a journalist who “covers local court cases on my YouTube,”
causing the PRA officer to conduct an independent review of the
account – named “Libertys Champion” – and a Google search to
find any information showing Petitioner was a “journalist,” but
found nothing supporting such status. Resp. App. 41-43.
8
while making no mention of the First Amendment. Id.9
Indeed, he did not provide the state attorney general
the mandatory notice that would have been required if
he was making a constitutional challenge to the
statute. See, e.g., Jackson v. Quality Loan Serv. Corp.,
186 Wash. App. 838, 846, 347 P.3d 487 (2015) (“RCW
7.24.110 requires notification to the state attorney
general when there is a Constitutional challenge to
state legislation.”)
In response to County discovery requests, Green
did not claim he would use the protected information
to investigate as the Legislature intended but
admitted if he obtained the protected photographs and
birthdates of the officers he “intend[s] to . . . convey[ ]”
them “to a broad segment of the public. . . .” Resp. App.
33. The County thereby confirmed Green was an exinmate seeking to widely disseminate protected
personal information about officers that would cause
9
His failure to make a constitutional claim makes sense:
“Legislative classifications . . . are presumed to be constitutional,
and the burden of showing a statute to be unconstitutional is on
the challenging party, not on the party defending the statute:
‘those challenging the legislative judgment must convince the
court that the legislative facts on which the classification is
apparently based could not reasonably be conceived to be true by
the governmental decisionmaker.’ ” New York State Club Ass’n,
Inc. v. City of New York, 487 U.S. 1, 17 (1988) (quoting Vance v.
Bradley, 440 U.S. 93, 111 (1979)). Understandably, Green never
pursued this “considerable” burden. See id. (citing United States
v. Carolene Products Co., 304 U.S. 144, 154 (1938)).
9
the very kind of harm the statute was enacted to
prevent.10
After the parties filed dispositive briefing, the trial
court ruled – without mention of the First Amendment
– that under its broad interpretation of the statute
Green satisfied the statutory definition of “news
media” and held the County liable under the PRA for
withholding its employee’s personal records – the only
issue before it. See Resp. App. 44-62. However, it also
certified the case to the Court of Appeals because its
“order involves a controlling question of law as to
which there is a substantial ground for a difference of
opinion and that immediate review of the order may
materially advance the ultimate termination of the
litigation.” Id. at 61a-62a.
Appellate Argument: Green Argues First
Amendment Only as Aid to Statutory Construction and Denies Making “Constitutional Challenge”
In responding to Green’s opposition to appellate
review, id. at 39a, 67a-60a, the County observed “a
constitutional challenge would not be a basis to oppose
discretionary review,” Green had “pled no constitutional challenge in his Complaint to RCW 5.68.010 [i.e.
10
Confirming this, Green during this litigation made a PRA
request to the Pierce County Prosecutor’s Office – again calling
himself an “Investigative Journalist” but targeting the Deputy
Prosecutor defending the County against this lawsuit and seeking
the attorney’s protected birthdate and photograph. Pet. App. at
48a-49a; Pet. App. 46a n. 13.
10
definition of “news media”], and his cause of action is
under RCW 42.56.550” [i.e. the PRA]. Resp. App. 27. In
response, Green moved to personally sanction County
counsel for somehow “mischaracteriz[ing] [Green’s]
First Amendment argument as a constitutional challenge to the statute,” because instead his “argument is
the statute must be construed in a constitutional
manner.” See id. 26-28; see also id. 23 (emphasis
added). Indeed, he also filed a declaration swearing the
County “incorrectly states that I am making a
constitutional challenge to RCW 5.68.010(5)” when he
in fact only was “using the First Amendment to
construe RCW 5.68.010(5) in a way that would not
infringe upon the First Amendment’s protections. . . .”
Id. at 20.
The Court of Appeals granted the County’s discretionary review motion (without mention of the First
Amendment), Pet. App. 33a-41a, and later certified the
appeal for transfer to the Washington Supreme Court
for direct review (again without mentioning the
Constitution). Pet. App. 42a. The only appellate issues
listed were civil discovery and whether Green “could
obtain through a public disclosure request, photographs and birthdates of law enforcement personnel,
which are usually exempt from public disclosure under
RCW 42.56.250(8), because his YouTube channel
makes him ‘news media’ under RCW 5.68.010(8) [sic]
to whom the exemption does not apply.” Id.
In the Washington Supreme Court, Green devoted
less than three pages of his 50 page appellate brief to
arguing the First Amendment as a general
11
consideration for interpreting the statutory definition
of “news media,” but neither argued it as a ground for
challenging the constitutional validity of § 5.68.010’s
definition nor asked that it be found unconstitutional.
Resp. App. 71-73. In opposing the amicus brief of Allied
Daily Newspapers of Washington that supported
reversal, Green reiterated his use of the First
Amendment for constitutional avoidance was so he
could obtain a broad definition of the statute’s
requirement that a privilege holder must be “in the
regular business of gathering and disseminating
news.” Pet. App. 75a-82a. He attributed no constitutional significance to the additional statutory requirement that a “person” asserting the privilege also must
be “an employee, agent, or independent contractor of
any entity listed in (a) of this subsection. . . .” Compare
id. with § 5.68.010(5)(b) (emphasis added). In oral
argument later, his counsel responded to the Court’s
pointed questioning about “constitutional avoidance”
by repeatedly reaffirming: “And this is just a basic
statutory construction argument. . . . This isn’t a
First Amendment challenge to the statute, we’re not
saying that the statute is unconstitutional.” See
https://deprecated.tvw.org/watch/?eventID=2020101153,
at 26:25 sec to 28:37.
12
Washington Supreme Court: Decision and
Dissent Agree Only Issue is Statutory
Meaning of “Entity,” Not Violation of
Constitution
In rejecting Green’s arguments and instructing
the trial court to dismiss his PRA complaint, the seven
justice majority of the Washington Supreme Court – as
well as the two justices in dissent – made clear the only
appellate issue was the statutory definition of “news
media” under § 5.68.010(5) and not its validity under
the First Amendment. The Court therefore instead
recognized its “fundamental objective is to ascertain
and carry out the Legislature’s intent.” Id. at 7a
(quoting Dep’t of Ecology v. Campbell & Gwinn, LLC,
146 Wash.2d 1, 9-10, 43 P.3d 4 (2002); see also id. at 14a
(“the legislature, not the court, is responsible for
enacting statutes, and this court is bound by the
statute’s unambiguous language.”) As a result, the
decision simply held “Green has not proved that he or
the Libertys Champion YouTube channel meets the
statutory definition of ‘news media,’ and, thus, he is not
entitled to the exempt records.” Pet. App. 1a-2a.
Specifically, the decision held “[o]nly (a) and (b)” of
§ 5.68.010(5)’s definition of news media “are at issue in
this case,” id. at 11a – and even more specifically its
“entity” requirement.
As to Green’s YouTube account, the decision found
“[u]nder the plain meaning of the statute,” subsection
(a) required – among other things – a party seeking the
privilege must “fall under one of the listed traditional
news outlets or the general term, ‘entity.’ ” Id.; see also
13
id. at 13a (emphasis added). The social media account
however was found neither among those “listed
organizations” nor a legal “entity.”11 The decision
further noted the statute was not “concerned with the
medium” and therefore rejected any claim “a YouTube
channel cannot be a news media entity.”12 Pet. App. 15a
(citing § 5.68.010(5)(a) (defining news media as an
entity that gathers and disseminates news “by any
means”)). Instead, the decision recognized that
“owning and operating a YouTube channel alone does
not create a news media entity” for purposes of the
statutory privilege. Id. (emphasis added). As to Green,
the decision held “[u]nder the plain meaning of the
statute” subsection (b) (which expressly addresses
“person[s]”), he could not “satisfy the first part of this
test because the Libertys Champion YouTube channel
is not a news media entity under (a).” Id. at 17a-18a
(emphasis added). Thus, the decision did “not reach
the issue of whether [the YouTube account] is ‘in the
regular business of news gathering and disseminating
news or information to the public’ ” as subsection (a)
also requires, id. at 16a, or whether Green as a “person
. . . was ‘engaged in bona fide news gathering’ or
11
The decision holds that under the statute “[a]n ‘entity’
must be something with a legal identity separate from the
individual,” and here “Green has stated that ‘Libertys Champion
does not exist without Mr. Green.’ ” Id. at 13a, 16a. The decision
does not hold, as Petitioner misstates 22 times, that incorporation
is required. See, e.g., Pet. i. Neither the decision nor statute make
such a statement nor do either accompany the term “entity” with
the term “corporate.” Pet. App. 1a-31a.
12
Thus Petitioner is mistaken in claiming the decision
somehow “may imperil entire mediums of publication.” Pet. 28.
14
obtained the news or information ‘on behalf of a news
media entity’ ” as subsection (b) additionally required.
Id. at 17a-19a.
As to Green’s generalized and short “argu[ment]
that the definition of ‘news media’ must be construed
broadly so as to not infringe on the First Amendment’s
freedom of the press,” the decision considered this
interpretive canon of constitutional avoidance and
rejected its application. Pet. App. 15a n. 5. It did so by
noting this Court holds the “First and Fourteenth
Amendments do not guarantee the public a right of
access to information generated or controlled by
government, nor do they guarantee the press any basic
right of access superior to that of the public generally.”
Id. (quoting Houchins v. KQED, Inc., 438 U.S. 1, 16
(1978) (Stewart, J., concurring)).
The two dissenting justices agreed “this case does
not directly concern the First Amendment” but only
was “instructive” as a statutory interpretive tool. Pet.
App. 26a. They simply “part[ed] ways with the majority
. . . on its holding” regarding the interpretation of the
statute’s “entity” requirement. Id. at 23a. As the
dissent’s author correctly explained that same day
when authoring a majority decision in a different case,
the court cannot “use the doctrine of Constitutional
avoidance” when a statute “clearly commands the
result we reach,” and the alternative of “strik[ing]
down that statute” is not available when “that argument . . . is not before the court.” State v. Jenks, 197
Wash.2d 708, 727, 487 P.3d 482 (2021) (citing State v.
Chester, 133 Wash.2d 15, 21, 940 P.2d 1374 (1997) (“a
15
statute will be construed so as to avoid Constitutional
problems, if possible”) (emphasis in original); In re
Parentage of C.A.M.A., 154 Wash.2d 52, 69, 109 P.3d
405 (2005) (the Court does not rewrite statutes to avoid
Constitutional problems)).
---------------------------------♦---------------------------------
ARGUMENT
A. This Case is an Extraordinarily Poor Vehicle
for Addressing the Question Presented
Concerning “News Media’s” Supposed First
Amendment Privilege to Public Records
1.
By Expressly Denying He was Making a
First Amendment Challenge in State
Court, Green is Precluded From Making
it Now
Green’s petition attacks the Washington Supreme
Court’s alleged “refusal to consider the First Amendment’s application” to the statutory privilege. Pet. 29.
See also Pet. i (asserting “question presented” is
whether the state court’s interpretation of state
statute “violates the First Amendment freedoms of
speech and press”). First, the state’s highest court did
consider constitutional avoidance and found it
inapplicable. See Pet. App. 15a n. 5. Second, Petitioner’s
argument ignores the court below did not consider a
First Amendment challenge to the statute because he
expressly and repeatedly told the court “this is just a
basic statutory construction argument” and not “a
First Amendment challenge to the statute, we’re not
16
saying that the statute is unconstitutional.” See
discussion supra at 10-11.
As a matter of law, “the canon of constitutional
avoidance in statutory interpretation” is “not a method
of adjudicating constitutional questions by other
means.” See Clark v. Martinez, 543 U.S. 371, 381-82
(2005) (citing NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 502 (1979) (refusing to engage in extended
analysis in the process of applying the avoidance canon
“as we would were we considering the Constitutional
issue”); Vermeule, Saving Constructions, 85 Geo. L.J.
1945, 1960-1961 (1997) (providing examples of cases
where the Court construed a statute narrowly to avoid
a constitutional question ultimately resolved in favor
of the broader reading)). Green’s assumption that
certiorari can be based on a state court’s application of
constitutional avoidance simply “misconceives – and
fundamentally so – the role played by the canon of
constitutional avoidance in statutory interpretation.”
Clark, 543 U.S. at 381 (citing Catholic Bishop of
Chicago, id.).
Where – as here – the court below “never reached
[Petitioner’s] Constitutional arguments,” this Court
will “decline to do so in the first instance” regardless of
constitutional avoidance arguments. See United States
v. Apel, 571 U.S. 359, 372-73 (2014) (whether statute
was unconstitutional “is a question we need not
address” despite Petitioner’s “attempts to repackage
his First Amendment objections as a statutory interpretation argument based on constitutional avoidance”
because constitutional avoidance “is not a method of
17
adjudicating constitutional questions by other means”)
(quoting Clark, 543 U.S. at 381)). See also, e.g., Pierce
Cty., Wash. v. Guillen, 537 U.S. 129, 148 n. 10 (2003)
(declining in PRA action to address constitutional
amendment that plaintiff raised “in passing” and
which “court below did not address,” because “[w]e
ordinarily do not decide in the first instance issues not
resolved below and decline to do so here.”) (citing
National Collegiate Athletic Assn. v. Smith, 525 U.S.
459, 470 (1999)); Adams v. Robertson, 520 U.S. 83
(1997) (though plaintiffs cited relevant case in brief
before state supreme court, they cited it for entirely
different argument).13
Likewise, a petitioner’s “[s]potting a constitutional
issue does not give a court the authority to rewrite a
statute as it pleases” but only to “choos[e] between
competing plausible interpretations of a statutory
text.” Jennings v. Rodriguez, 138 S. Ct. 830 (2018)
(quoting Clark, 543 U.S., at 381). Petitioner’s newly
alleged “First Amendment claims” turn on the
Washington Supreme Court’s interpretation of its
state’s statutory “news media” privilege based on what
13
Citing Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246,
2262-63 (2020), Green argues “Washington’s Supreme Court may
be free to interpret state law, but it cannot apply that law, as it
did here, in contravention of the First Amendment.” Pet. 1. Here,
however, Petitioner expressly denied making a “First Amendment
challenge,” while the Espinoza plaintiffs expressly “challenged
Rule 1 in District Court, arguing it violated the free exercise
clauses of the Montana and U.S. Constitution” See Espinoza v.
Montana Dep’t of Revenue, 393 Mont. 446, 435 P.3d 603, 608
(2018) (emphasis added).
18
it held was “the plain meaning of the statute.” See Pet.
App. 11a, 13a, 17a-18a. This Court has long held state
supreme courts “are the ultimate expositors of state
law,” and it is “bound by their constructions except in
extreme circumstances not present here.” Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975) (citing, e.g., Murdock
v. City of Memphis, 87 U.S. 590 (1875)). See also Bellotti
v. Baird, 443 U.S. 622, 644-45 n. 24 (1979) (“the
interpretation of a state statute by the State’s highest
court “is as though written into the ordinance itself ”)
(citing Poulos v. New Hampshire, 345 U.S. 395, 402
(1953)). Accordingly, when addressing an actual First
Amendment challenge to a state statute, this Court
held the state court’s statutory interpretation was
“authoritative” and its “construction fixes the meaning
of the statute for this case.” Winters v. New York, 333
U.S. 507, 514 (1948) (emphasis added). As a result, the
“views of the State’s highest court with respect to state
law are binding on the federal courts.” See Wainwright
v. Goode, 464 U.S. 78, 84 (1983) (citing Brown v. Ohio,
432 U.S. 161,167 (1977)). Because the record confirms
no federal question was raised and decided by the state
court, this Court lacks jurisdiction. See, e.g., Illinois v.
Gates, 462 U.S. 213 (1983), rehearing denied 463 U.S.
1237 (1983) (If both requirements that a federal
question has been raised and decided in the state court
do not appear on the record, appellate jurisdiction of
the Supreme Court fails); Webb v. Webb, 451 U.S. 493
(1981) (where plaintiff did not raise federal question
below and state supreme court did not rule on any
federal issue, this Court was without jurisdiction on
petition for certiorari).
19
2.
Striking Down “News Media” Exception
as Unconstitutional Would Still Require
Affirming Dismissal Since Officer Birth
Dates and Photos Would Then be Protected From All Requesters
One explanation for Petitioner’s repeated denials
of making “a constitutional challenge to RCW
5.68.010(5),” see, e.g., Resp. App. 20, 23, 26-28, is that
striking down the statutory definition of “news media”
as unconstitutional would remove the incorporated
“news media” exception from § 42.56.250(8) while
retaining the latter’s statutory protections. Without the
statutory exception, Green – and anyone else claiming
to be “news media” – would share the same position as
the “public generally” and be equally excluded from
obtaining protected officer birthdates and photographs
under the PRA. See Branzburg v. Hayes, 408 U.S. 665,
684 (1972) (“First Amendment does not guarantee the
press a constitutional right of special access to
information not available to the public generally”)
(citing Zemel v. Rusk, 381 U.S. 1, 16-17 (1965)); see, e.g.,
also Houchins, 438 U.S. at 14 (media has no “First
Amendment right to government information” because
“[t]here is no Constitutional right to have access to
particular government information”); Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 201 (1990) (no First
Amendment privilege from producing subpoenaed
records because it “does not invalidate every incidental
burdening of the press that may result from the
enforcement of civil or criminal statutes of general
applicability”) (quoting Branzburg, 408 U.S. at 682).
20
This Court has long recognized that should a state
statute “be in part constitutional and in part unconstitutional, . . . if the parts are wholly independent of
each other, that which is constitutional may stand
while that which is unconstitutional will be rejected.”
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502
(1985) (holding invalidation of state statute would be
“improvident”) (quoting Allen v. Louisiana, 103 U.S. 80,
83-84 (1881) quoted with approval in Field v. Clark,
143 U.S. 649, 695-696 (1892)). “Nor does the First
Amendment involvement in this case render inapplicable the rule that a federal court should not extend its
invalidation of a statute further than necessary to
dispose of the case before it.” Id. (citing Buckley v.
Valeo, 424 U.S. 1, 108 (1976)). Thus, where a prior
statute is “incorporated in a subsequent one in terms
or by relation,” it is equally well settled “the repeal of
the former leaves the latter in force, unless also
repealed expressly or by necessary implication.” In re
Heath, 144 U.S. 92, 93 (1892); see also 2B Sutherland
Statutory Construction § 51:8 (7th ed.) (“Repeal of a
referred statute has no effect on the reference statute
unless the reference statute is repealed by implication
with the referred statute”).
The underlying question of severability of a state
statute “is of course a matter of state law.” Virginia v.
Hicks, 539 U.S. 113, 121 (2003) (citing Leavitt v. Jane
L., 518 U.S. 137, 139 (1996) (per curiam)). In Washington: “An act of the legislature is not unconstitutional
in its entirety because one or more of its provisions is
unconstitutional unless the invalid provisions are
21
unseverable . . . or unless the elimination of the
invalid part would render the remainder of the act
incapable of accomplishing the legislative purposes.”
State v. Williams, 144 Wash.2d 197, 212, 26 P.3d 890
(2001) (refusing to strike down statute in entirety for
restricting “constitutionally protected speech” because
severing an objectionable term “cures the constitutional infirmity”) (quoting State v. Anderson, 81
Wash.2d 234, 236, 501 P.2d 184 (1972)). A “severability
clause is not necessary in order to meet the severability test.” United States v. Hoffman, 154 Wash.2d 730,
748-49, 116 P.3d 999 (2005), as amended (Aug. 25,
2005) (citing Guard v. Jackson, 83 Wash. App. 325, 921
P.2d 544 (1996), aff ’d, 132 Wash.2d 660, 940 P.2d 642
(1997). Instead, severability concerns “examin[ing] the
challenged statute as a whole to determine whether
the legislature could have intended to enact the valid
sections alone and whether those valid sections alone
work to achieve the legislature’s goals.” See Ass’n of
Washington Bus. v. Washington State Dep’t of Ecology,
195 Wash.2d 1, 18, 455 P.3d 1126 (2020) (severing
objectionable definition from rest of statute); see also
McGowan v. State, 148 Wash.2d 278, 60 P.3d 67 (2002)
(definition was severable from balance of initiative).
After the murders of four police officers the
legislative purpose of amending § 42.56.250 was “all
about officer safety.” S.B. Rep., E2SHB 1317. Incorporation into that statute of § 5.68.010(5)’s “news media”
definition, see § 42.56.250(8), provided a “workable
definition” for an exception for access by those needing
the information as a tool to “engage[ ] in bona fide
22
news gathering” rather than as “a privilege to virtually
anybody in the state who has a MySpace account.” See
discussion supra at 5; § 5.68.010(5). In light of the
protection’s origin in the gunning down of four police
officers, there is no basis to believe the Legislature
would have preferred continuing to risk officer safety
rather than severing the news media exception.
Retaining those protections without an exception for
everyone claiming to be news media would still fulfill
the Legislature’s goal.14
Finally, where it was argued a statutory “exemption . . . renders the act unconstitutional because” of
its “classification of persons,” Washington Supreme
Court precedent holds even if “appellant should prevail
in this contention, it would still avail him nothing, for
if that particular section of the statute were declared
invalid, it would merely result in subjecting” him “to
the general operation of the act.” See Unemployment
Comp. Dep’t v. Hunt, 17 Wash.2d 228, 239, 135 P.2d 89
(1943) (holding exemption to statute “severable and
could be eliminated without affecting the remainder of
14
Petitioner’s broad application would defeat the Legislature’s goals by making both § 42.56.250(8)’s protection and
§ 5.68.010(5)’s shield law privilege meaningless by transforming
billions of social media accounts into privileged “news media.”
Under his reading everyone with a social media account – i.e. 82%
of Americans, see n. 6 supra 5 – could compel disclosure of
“protected” personal records of officers. Likewise, as amicus Allied
Daily Newspapers of Washington argued below, Green’s
expansive interpretation creates “a danger of stretching the
definition” of “news media” entity under § 5.68.010(5) “so far as
to jeopardize the [evidentiary press shield] law’s continued
existence.” Resp. App. 70.
23
the act” and Court did “not believe that if the
legislature had thought that this one provision would
be declared unconstitutional, it would have hesitated
for an instant to pass the remainder of the act.”)
Because Green’s PRA claim likewise still would be
dismissed, it is thus similarly “unnecessary to
determine whether this provision of the statute is valid
or invalid, for in either event the result is the same so
far as the appellant is concerned.” Id.; As this Court
recognizes: “our power is to correct wrong judgments,
not to revise opinions. We are not permitted to render
an advisory opinion, and if the same judgment would
be rendered by the state court after we corrected its
views of federal laws, our review could amount to
nothing more than an advisory opinion.” Herb v.
Pitcairn, 324 U.S. 117, 126 (1945) (emphasis added).
3.
Existence of Other Independent and
Adequate State Grounds
“This Court from the time of its foundation has
adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds.” Id. at 125 (citing, e.g.,
Murdock, 87 U.S. 590). Such state grounds exist here
because Green did not satisfy his burden to timely
comply with the state PRA’s procedural requirements.
As the Washington Supreme Court recognized in
this case, in “order to access otherwise exempt records
under the PRA, the requester bears the burden to
prove an exception to the exemption applies.” Pet. App.
24
19a. See also id. at 10a (citing § 42.56.210(2); Oliver v.
Harborview Med. Ctr., 94 Wash.2d 559, 567-68, 618
P.2d 76 (1980)). Applying its’ state’s statutory law, the
state’s high court held:
When the question is whether the requester
can claim news media status and qualify for
an exception, the requester is in the better
position to prove they are news media. . . .
Pierce County has satisfied its burden, and
the burden shifts to Green, as the party
asserting the news media exception to the PRA
exemption.
Pet. App. 10a (emphasis added). This burden included
making a timely showing the exception applied. See
also Republic of Kazakhstan v. Does 1-100, 192 Wash.
App. 773, 781, 368 P.3d 524 (2016) (“ ‘[t]he burden of
showing that [the news media] privilege applies in any
given situation rests entirely upon the entity asserting
the privilege.’ ”) (quoting Guillen v. Pierce County, 144
Wash.2d 696, 716, 31 P.3d 628 (2001), reversed in part
on other grounds, 537 U.S. 129 (2003)).
At issue here is the PRA’s requirement that: “With
any request, the receiving agency determines any
applicable exemptions at the time the request is
received.” Gipson v. Snohomish Cty., 194 Wash.2d 365,
372, 449 P.3d 1055 (2019) (emphasis in original). Thus,
at the time of this request, Green must have shown an
exception applied. See § 42.56.080(2) (persons requesting records may be required to provide information “to
establish whether inspection and copying would
violate . . . other statute which exempts or prohibits
25
disclosure of specific information or records to certain
persons.”); Thomas v. Pierce Cty. Prosecuting Attorney’s
Office, 190 Wash. App. 1036, at *9 (2015) (“Plaintiffs
never told the PCPAO at the time they requested the
documents that they had a substantial need” so as to
overcome the attorney work-product protection)
(emphasis added); Koenig v. Pierce Cty., 151 Wash. App.
221, 233, 211 P.3d 423 (2009), as amended (July 20,
2009), as amended on denial of reconsideration (Oct.
26, 2009) (where the PRA “exemption is applicable, the
office invoking it need not take steps to provide the
documents unless the requester makes an affirmative
showing” of the exception). Without information at the
time of the request establishing Green was “news
media” as defined in § 5.68.010(5), it would have
violated § 42.56.250(8) to release to an ex-inmate the
statutorily protected photographs and birthdates of
officers just because he used the unsubstantiated title
of “Investigative Journalist” – a term not included in
the shield statute’s definition. Thus, an agency’s
response that a PRA request is protected by statute
does not become retroactively invalid when facts
justifying an exception to the protection are not
disclosed until later.
Prior to bringing this action, Petitioner never
claimed he personally qualified as “news media” under
§ 5.68.010(5)(a). Resp. App. 19.15 Indeed, at the time he
15
Though after his request’s closure and before bringing suit
Green alleged his YouTube account met “the definition of RCW
5.68.010(5),” Resp. App. 10-11, he neither at that time produced
evidence of such nor could sue based on a non-party’s meeting an
26
made the PRA request, he made no claim – much less
the required “affirmative showing” – that a statutory
exception to the protection even applied to his request.
Instead, the facts then available to the County indicated the opposite: 1) the request was made through
an email address for Green’s musical band; 2) it
targeted an ex-inmate’s officers’ protected photographs
and birthdates; 3) disclosing such information could
endanger those officers and their families; and 4)
§ 42.56.250(8) was enacted to prevent precisely such
disclosures to just such requestors. It was only when
Green filed suit that he first claimed he personally met
the statutory “media” exception.16 Id. at 3-4.
B. No First Amendment Right to Access
Protected Records Just Because Requester
Uses Social Media and Claims to Be “News
Media”
1.
State Decision Follows this Court’s
Precedent While Petitioner Ignores and
Mischaracterizes it
Overlooking his failure to raise a constitutional
challenge below, Petitioner asserts: “It is irrelevant
exception to § 42.56.250(8)’s protection. See, e.g., Haberman v.
Washington Pub. Power Supply Sys., 109 Wash.2d 107, 138, 744
P.2d 1032 (1987), amended, 109 Wash.2d 107 (1988) (“doctrine of
standing prohibits a litigant from raising another’s legal rights”)
(citing Allen v. Wright, 468 U.S. 737, 750-51 (1984)); Jevne v.
Pass, LLC, 3 Wash. App. 2d 561, 567-68, 416 P.3d 1257 (2018)
(no standing to assert rights of third party unincorporated
association).
16
See supra 7 at n. 8.
27
that the First and Fourteenth Amendments do not
guarantee ‘a right of access to information generated
or controlled by government, nor do they guarantee the
press any basic right of access superior to that of the
public generally.’ ” Pet. 19. (quoting App. 15a n. 5 (quoting Houchins, 438 U.S. at 16) (Stewart, J., concurring));
see also Branzburg, 408 U.S. at 684 (“First Amendment
does not guarantee the press a Constitutional right of
special access to information not available to the public
generally.”) He attempts to support this surprising
assertion by quoting Houchins: “The Constitution does
no more than assure the public and the press equal
access once government has opened its doors.”
Houchins, 438 U.S. at 16 (Stewart, J., concurring)
(emphasis added). First, § 5.68.010(5) expressly closed
general public access to officers’ birthdates and
photographs, not “opened its doors.” Second, Green’s
argument conflates a state statutory privilege with a
federal constitutional right and inverts this Court’s
precedent to somehow transform a holding concerning
the absence of a constitutional right into one supporting its supposed presence. He does not explain this
legal alchemy, much less cite a decision of this Court
holding a statutory provision of access to records for
qualified press creates a federal Constitutional right
for all. Compare Pet. 14-19 with McBurney v. Young,
569 U.S. 221, 232 (2013) (“This Court has repeatedly
made clear that there is no constitutional right to
obtain all the information provided by FOIA laws”)
(quoting Houchins, 438 U.S. at 14 (“The Constitution
itself is [not] a Freedom of Information Act”)).
28
Third, though he claims the decision below
“directly conflicts” with this Court’s precedent and that
the Washington Supreme Court “should have read” the
sentence he quotes from Houchins, Pet. 14, 19, he
ignores the holdings of Houchins and its progeny.
Unmentioned is that Houchins involved a news
stations’ request for access to a jail to conduct
interviews and its claim to a First Amendment right to
that access. This Court rejected the claim and explained that though the press has a First Amendment
right to gather information, “[t]his Court has never
intimated a First Amendment guarantee of a right of
access to all sources of information within government
control,” and that “[t]here is no discernible basis for a
constitutional duty to disclose, or for standards
governing disclosure of or access to information.” 438
U.S. at 9, 14 (emphasis added).
Similarly, Green omits mention entirely of this
Court’s application of Houchins in Los Angeles Police
Dept. v. United Reporting Publishing Corp., 528 U.S.
32, 34 (1999), which rejected the First Amendment
argument he asserts here. In United Reporting,
petitioner challenged as unconstitutional a state
statute restricting public access to arrest records only
to those who attested they “will not be used directly or
indirectly to sell a product or service.” Id. This Court
rejected the First Amendment claim and agreed with
the police department the statute was “not an
abridgment of anyone’s right to engage in speech, be it
commercial or otherwise, but simply a law regulating
access to information in the hands of the police
29
department.” Id. at 40 (emphasis added). The Court
explained:
This is not a case in which the government is
prohibiting a speaker from conveying information that the speaker already possesses. . . .
The California statute in question merely
requires that if respondent wishes to obtain
the addresses of arrestees it must qualify
under the statute to do so. . . . [W]hat we have
before us is nothing more than a governmental denial of access to information in its
possession. California could decide not to give
out arrestee information at all without
violating the First Amendment.
Id. (citing Houchins, 438 U.S. at 14) (emphasis added).
For over two decades this Court’s precedent holds no
right to speech is violated by regulating those seeking
access to public information. See, e.g., Boardman v.
Inslee, 354 F. Supp. 3d 1232, 1244 (W.D. Wash. 2019),
aff ’d, 978 F.3d 1092 (9th Cir. 2020) (rejecting challenge
to Washington’s PRA because United Reporting “and
related cases declare firmly that legislative policy
decisions on public records disclosure do not generally
implicate fundamental rights under the First Amendment,” and thus holding “Plaintiffs have failed to
establish infringement of fundamental First Amendment rights.”)
Ignoring this Court’s precedent, Petitioner contorts various inapplicable quotations from Citizens
United v. FEC, 558 U.S. 310, 320 (2010) to cobble
together an alternative legal reality. See Pet. 14-19.
30
Hence, he quotes the sentence from Citizens that: “We
have consistently rejected the proposition that the
institutional press has any constitutional privilege
beyond that of other speakers.” (emphasis added). See
id. 15-16 (quoting 558 U.S. at 352). However, it is Green
that seeks a constitutional privilege beyond that held
by the public generally. Second, Citizens did not involve
regulating access to government records or claiming a
constitutional right was created by a state statutory
privilege. Rather, Citizens overturned a federal statute
that barred independent corporate expenditures for
electioneering communications – yet upheld that
statute’s other requirements that “may burden the
ability to speak, but they . . . ‘do not prevent anyone
from speaking.’ ” 558 U.S. 366 (quoting McConnell v.
Fed. Election Comm’n, 540 U.S. 93, 201 (2003)).
Petitioner next quotes from Citizens United: “Government may commit a Constitutional wrong when by
law it identifies certain preferred speakers” so as to
take “the right to speak from some and giving it to
others. . . .” Pet. 18 (quoting 558 U.S. at 340) (emphasis
added). Again, Citizens nowhere holds a state statute
providing press special access to records somehow
takes away a constitutional “right” – much less
overturns United Reporting’s express holding that no
such right exists and that regulation of it is no
violation. Despite this precedent, Petitioner’s argument consistently assumes a constitutional right and
argues the fallacy that giving specifically defined press
special access to government records somehow takes
away from others a previously rejected “right to speak.”
31
Such circular arguments cannot establish a rejected
right’s existence.
Like Houchins, and United Reporting, this case is
not one in which “the government is prohibiting a
speaker from conveying information that the speaker
already possesses,” but concerns “nothing more than a
governmental denial of access to information in its
possession” and thus it is “not an abridgment of
anyone’s right to engage in speech.” The constitutional
question Petitioner seeks to resurrect was answered by
this Court decades ago.
2.
Statutory Definition of “News Media”
Does not Discriminate Based on Content
Petitioner lastly quotes Citizens: “ ‘[R]estrictions
distinguishing among different speakers, allowing
speech by some but not others,’ are ‘interrelated’ to
content-based discrimination.” Pet. 17 (citing 558 U.S.
at 340) (emphasis added). Again, this argument fails to
acknowledge United Reporting holds no right to speech
is involved by a state statute simply regulating who
can access government information. So too, he ignores
federal precedent specifically holding the statute at
issue, § 5.68.010(5), is not “content-based discrimination.”
Cortland v. Pierce Cty., 488 F. Supp. 3d 1027, 1029
(W.D. Wash. 2020), reconsideration denied, C205155RJB, 2020 WL 5909808 (W.D. Wash. Oct. 6, 2020),
was a First Amendment challenge to § 5.68.010(5) that
– unlike this case – actually litigated whether it was a
32
“content-based restriction on speech” and specifically
requested the court to “invalidate it as unconstitutional.” As to the claim “the PRA permits the media
to access records that he cannot” and thus “is
unconstitutional” because “it differentiates the result
of the request based on the content of the speech,” the
Court first noted that even “[a]ssuming a PRA request
is speech,” the PRA protection instead distinguishes
between two types of speakers, even where the content
of the speech – ‘please provide a copy of Cornelius’s ID
photo’ – is identical.” Id. at 1030 n. 2 (emphasis in
original).17 Like Petitioner here, plaintiff ’s filings there
did “not clearly articulate what content he claims is
being suppressed by a rule that certain employee
photographs are exempt from the PRA, when
requested by a non-media member of the public.” Id. at
1033. Second, the District Court found Houchins and
United Reporting had resolved that restrictions on
access to government records otherwise allowed to
others did not prohibit “speech.” Id.
17
Plaintiff in Cortland, like Petitioner now, Court, Pet. 18,
cited Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2347
(2020) (plurality) which noted “laws favoring some speakers over
others demand strict scrutiny when the legislature’s speaker
preference reflects a content preference.” Id. (quoting Reed v. Town
of Gilbert, 576 U.S. 155, 170 (2015); Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 658 (1994)) (emphasis added). However, the
District Court found Barr inapplicable to § 42.56.250(8) because
that case involved “a statute permitting ‘robocalls’ seeking to
collect a debt to the government, while prohibiting robocalls calls
seeking to collect a campaign donation” – which this Court noted
“is ‘about as content-based as it gets.’ ” Rodriguez v. Barr, 488
F. Supp. 3d 29, 1033 (2020) (emphasis added).
33
Cortland accordingly held “RCW 42.56.250(8) is
facially neutral; it does not regulate the content of
anyone’s speech” and “the Supreme Court has firmly
established that the public does not have a First
Amendment right to obtain information from the
government, and that restrictions on access do not
implicate the First Amendment, at all” so this “should
end the inquiry.” Id. (emphasis added). It thus held
§ 42.56.250(8)’s protection from disclosure “does not
implicate the First Amendment, and the carve-out
allowing the media to access that information is not
facially unconstitutional as a matter of law.” Id.
Petitioner cites no authority of this Court, or of any
other after United Reporting, that holds to the
contrary.18
3.
Petitioner Identifies no Relevant Circuit
Court Split
Green alleges the “D.C., First, Second, and
Seventh Circuits hold that the First Amendment
requires the government to justify any discrimination
in providing press access to information.” Pet. 19-22.
However, his case citations reflect no post United
18
Consistent with its precedent, this Court gives access that
is not available to the public generally by providing offices, after
hours non-public facilities and courtroom seats exclusively for
credentialed media who are “full-time professional journalists
employed by media organizations that have records of substantial
and original news coverage of the Court and a demonstrated
need for regular access to the Court’s press facilities.” See
https://www.supremecourt.gov/publicinfo/press/media_requirements_
and_procedures_revised_070717.pdf. (emphasis added).
34
Reporting split over the constitutionality of uniformly
applied and content neutral regulation of access to
protected government records. See Pet. 19-22 (citing
Karem v. Trump, 960 F.3d 656, 659, 665 (D.C. Cir. 2020)
(observing only that suspension of press pass from a
public forum “implicate[s]” “important first amendment rights,” but enjoining suspension instead
because reporter “is likely to succeed on his [Fifth
Amendment] due process claim because . . . he lacked
fair notice that the White House might punish his
purportedly unprofessional conduct”) (emphasis
added); Anderson v. Cryovac, Inc., 805 F.2d 1, 9 (1st Cir.
1986) (decision predating United Reporting held court
erred by granting one media entity exclusive access to
court records); Am. Broad. Cos., Inc. v. Cuomo, 570 F.2d
1080, 1083 (2d Cir. 1977) (pre-United Reporting
decision that did not involve protected records but
which found barring a particular news station from
candidate campaign facilities under “threat of arrest is
unconstitutional and should be the subject of a federal
injunction.”); John K. MacIver Inst. for Pub. Policy, Inc.
v. Evers, 994 F.3d 602, 615 (7th Cir. 2021), cert. denied,
142 S. Ct. 711 (2021) (affirming dismissal of reporters’
First Amendment claim for denial of access to press
event because, though it “look[s] carefully at any claim
that a government entity is disallowing access to the
media or a particular subset thereof,” it held such “does
not mean . . . members of the press have special access
to newsgathering and must be exempt from laws and
rules of general application” nor “that we must
disallow a government’s set of viewpoint-neutral
criteria” and held the state there “has created neutral
35
laws of general application and [reporter] has not
shown any evidence that it was excluded based on its
viewpoint”)).
4.
Protections Against Doxing19 Pose no
Threat to Citizen Journalism or to
Accessing News and Commentary
Petitioner ends his argument by listing several
modern day “lone pamphleteers” and equates them to
his endangering officers and their families by “convey[ing]” their protected photographs and birthdates
directly to “a broad segment of the public.” Pet. 23-29.
However, none of the cited examples relied on PRA
requests or made them for revenge doxing of public
servants. Id. Neither PRA protections of officer birthdays and photographs nor a “news media” exception
would have prevented the cited stories from “see[ing]
the light of day” as somehow alleged. Id. at 24.
Comparing Green to Thomas Paine defies common
sense.
Petitioner then asserts “videos that Brian Green
might publish if he knew the identities of the officers
who assaulted and jailed him would doubtless annoy
Pierce County.” Pet. 28. This misstates the facts and
trivializes the danger to officers and their families.
Green was immediately provided those identities in
19
Defined by Merriam-Webster as “to publicly identify or
publish private information about (someone) especially as a form
of punishment or revenge.” See https://www.merriam-webster.com/
dictionary/dox.
36
the County’s PRA response, Resp. App. 8, and his
complaint seeks only the withheld private information
of numerous officers – just two of whom had anything
to do with his obstruction arrest. Pet. 7. More importantly, the danger at issue is not supposed County
“annoyance,” but Petitioner’s admitted “inten[t] to . . .
convey[ ]” its officers’ protected photographs and
birthdates directly to “a broad segment of the public.”
Resp. App. 33.
Such use as “a weapon to get back” at Petitioner’s
officers “targets and endangers individuals and families,” as well as risks “misappropriat[ing] . . . birth
dates” that allow “requesters or others to obtain residential addresses and to potentially access financial
information, retirement accounts, health care records
or other employee records” as well as commit “identify
theft and harassment.” See Washington Pub. Employees Ass’n, 194 Wash.2d at 493; S.B. Rep., ESSHB
1317; H.B. Rep., HB 1888; S.B Rep., 2SHB 1888 (2020).
These dangers should not be belittled: they are why
birth years are redacted from federal court filings, see
FRCP 5.2(a), and why doxing public servants is
increasingly being recognized as a tort and crime. See,
e.g., Ky. Rev. Stat. Ann. § 525.085 (2021); Nev. Rev. Stat.
Ann. § 41.1347 (2021); Okla. Stat. Ann. tit. 21, § 1176
(2021); Or. Rev. Stat. Ann. § Ch. 300, § 1 (2021).
---------------------------------♦---------------------------------
37
CONCLUSION
Because the statute at issue “is all about officer
safety,” because the state court decision interpreting it
decided no federal issue, and because the petition
raises no federal question and seeks reversal of this
Court’s long-standing precedent without providing
Petitioner an actual remedy, Respondent Pierce
County respectfully requests certiorari be denied.
DATED: February 14, 2022
MARY E. ROBNETT
Pierce County Prosecuting Attorney
DANIEL R. HAMILTON
Deputy Prosecuting Attorney
Counsel of Record
FRANK A. CORNELIUS
Deputy Prosecuting Attorney
PIERCE COUNTY PROSECUTOR’S OFFICE
955 Tacoma Avenue South, Ste. 301
Tacoma, WA 98402
253-798-7746
dan.hamilton@piercecountywa.gov
frank.cornelius@piercecountywa.gov
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.