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For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization,
THE UNIVERSITY OF WASHINGTON, an agency of the State of Washington,
FREEDOM FOUNDATION, an organization,
Appellant. No. 76630-9-1
ORDER GRANTING MOTION TO PUBLISH 5 -) cri cr.)
The respondent, Service Employees International Union Local 925 and Amici
Service Employees International Union Healthcare 1199NW, Service Employees
International Union Local 775, Washington Federation of State Employees, Washington
Education Association, Teamsters Local 117, and American Federation of Teachers
Washington, have filed a motion to publish. The appellant, Freedom Foundation, has
filed an answer. A majority of the panel has reconsidered its prior determination not to
publish the opinion filed for the above entitled matter on June 11, 2018 finding that it is
of precedential value and should be published. Now, therefore, it is
ORDERED that the motion to publish is granted; it is further
ORDERED that the written opinion filed June 11, 2018 shall be published and
printed in the Washington Appellate Reports. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization,
Respondent, ) ) ) ) ) No. 76630-9-1
v. ) ) 'PUBLISHED OPINION
) Ps.) C:=1 THE UNIVERSITY OF WASHINGTON, an ) agency of the State of Washington, ) C-- rry tTh ) -7 1 - 11 Respondent, ) ) " t r. > FREEDOM FOUNDATION, an ) organization, ) ) • •(r) 4.< Appellant. ) FILED: June 11,2018 ) APPELWICK, C.J. — The Freedom Foundation sent a PRA request to UW,
seeking records associated with union organizing created by, received by, or in the
possession of four named UW employees and specified e-mail addresses. SEIU
925 filed a complaint seeking to enjoin UW from releasing the records. The
superior court concluded that the records at issue are not "public records" under
the PRA, because they were not prepared, owned, used, or retained within the
scope of employment. We affirm. No. 76630-9-1/2
The Freedom Foundation (Foundation) is a non-profit organization that
"seeks to promote individual liberty, free enterprise, and limited accountable
government." "Part of its mission is to pursue governmental transparency and
The University of Washington (UW) is a public four year institution of higher
education, an agency of the State of Washington, and has campuses in Tacoma,
Bothell, and Seattle.
Service Employees International Union Local 925 (SEIU 925) is a labor
organization representing public and private sector workers in Washington State.
Purposes of SEIU 925 include organizing faculty at institutions of higher education
in Washington State and providing representation as appropriate to its members
and the individuals the union represents. SEIU 925 has worked with UW faculty
in efforts to organize a union under chapter 41.76 RCW, which provides collective
bargaining for faculty at public four year institutions of higher education.
The Foundation's PRA Request
In December 2015, the Foundation submitted a request under the Public
Records Act (PRA), chapter 42.56 RCW, to UW. It requested all documents, e -
mails, or other records created by, received by, or in the possession of UW
faculty/employees Amy Hagopian, Robert Woods, James Liner, or Aaron Katz that
contained specified terms, including "Freedom Foundation," "SEIU," "Union," and
others. The request also sought e -mails sent to or received by the four named UW
2 No. 76630-9-1/3
faculty members from the domain names "seiu925.org" and
"uwfacultyforward.org." And, it requested all e -mails sent from and received by
firstname.lastname@example.org. 1 The Foundation's stated purpose of the request was
"to ensure accountability and transparency among government employees using
government -issued e-mail addresses."
After receiving the PRA request, the UW Office of Public Records and Open
Public Meetings (OPR) asked the named professors for responsive records.
Professor Robert Wood, one of the named faculty members in the Foundation's
request, sent records to OPR. OPR reviewed the records and "was unable to
determine that the records were not public records." OPR notified Wood that the
records would be released, unless he sought a court order by April 26, 2018
preventing their release. The proposed release, records provided only by Wood,
was 3913 pages of e -mails and attachments, the "vast majority" of which were e -
mails sent to or from Wood's UW e-mail address, or to or from the AAUP listserver
1 The UW chapter of the national nonprofit organization, the American Association of University Professors (AAUP), uses the UW e-mail account, email@example.com. That account operates an e-mail "listserver" (distributes messages to an e-mail subscriber list) entitled "Faculty Issues and Concerns." The mission of the UW chapter of AAUP is " `to advance academic freedom and shared governance; to define fundamental professional values and standards for higher education; to promote the economic security and working conditions of all categories of faculty, academic professionals, graduate students, post -doctoral fellows, and all those engaged in teaching and research in higher education; to develop the standards and procedures that maintain quality in education; to help the higher education community organize to make our goals a reality; and to ensure higher education's contribution to the common good.'"
3 No. 76630-9- 1/ 4
Complaint and Subsequent Procedural History
On April 25, 2016, SEIU 925 filed a complaint for declaratory judgment and
injunctive relief, seeking to enjoin UW from releasing the records. On the same
day, SEIU 925 also moved for a temporary restraining order (TRO) and preliminary
injunction to enjoin UW from releasing the records to the Foundation. Based on a
proposal by the Foundation, the parties agreed that SEIU 925 would not seek a
TRO and instead would argue the case at a preliminary injunction hearing. The
Foundation agreed not to seek disclosure of the requested records and agreed to
waive claims against the University for penalties and attorney fees for the period
until the hearing.
On June 10, 2016, the trial court held a hearing on SEIU 925's motion for a
preliminary injunction and entered a TRO, enjoining the release of records, except
those identified as "public records." The order also directed SEIU 925 on or before
July 6 "to show by affidavit cataloging and describing with sufficient particularity as
to the status of the records as public or not public records."
In compliance with the trial court's order, SEIU 925 catalogued the
documents at issue, identifying 102 pages of public records, and placing the
remaining records into categories. UW sent the 102 pages of identified public
records to the Foundation.
On August 5, 2016, the trial court held a second preliminary injunction
hearing. The court entered a preliminary injunction, finding the documents
identified as nonpublic records were not "public records" subject to disclosure. In
its written order filed on September 23, the trial court found that SEIU 925 had
4 No. 76630-9-1/5
standing to seek injunctive relief. Further, it found that the records at issue "were
not created within the scope of the employee's employment and therefore are not
public records." And, it found that SEIU 925 demonstrated a likelihood of success
on the merits of their claims for injunctive relief:
(1) [SEIU 925] has established a clear legal or equitable right to nondisclosure of those parts of [the records] that have not already been disclosed as public records because they contain personal and private emails [sic] unrelated to the scope of Professor Robert Wood's employment at UW and cannot be categorized as public records; (2) a well-grounded fear of immediate invasion of that right by the disclosure of those records, and that (3) the release of those records will result in immediate, actual and substantial injury to [SEIU 925]. On October 4, 2016, the Foundation filed a motion for reconsideration of the
injunction. On October 12, the trial court denied the Foundation's motion.
On February 24, 2017, SEIU 925 filed a motion for summary judgment and
permanent injunction. On March 27, 2017, the trial court entered a permanent
injunction enjoining release of the documents at issue, finding that they were "not
public records as defined in RCW 42.56.010(3) of the PRA."
On March 27, 2017, the Foundation appealed the order granting the TRO,
the order granting SEIU's motion for preliminary injunction, the order denying
Foundation's motion for reconsideration, 2 and the order granting SEIU's motion for
summary judgment and permanent injunction. On April 3, 2017, SEIU filed a
2 The Foundation included the trial court's order denying its motion for reconsideration in its notice of appeal, but does not assign error and it does not address this issue in its brief. Therefore it is waived, and we do not address it. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (party waives assignment of error when it does not argue the issue in its opening brief).
5 No. 76630-9-1/6
motion to change trial date and for a stay of proceedings, pending the outcome of
the appeal to this court. On April 7, 2017, the Foundation filed a combined motion
to strike SEIU's motion and motion for sanctions, asserting that the trial court no
longer had jurisdiction. The trial court denied the Foundation's motion to strike and
for sanctions, and granted SEIU 925's motion to change trial date and for a stay of
proceedings, staying the matter and continuing the trial until October 23. The
Foundation amended its appeal, appealing the order denying its motion to strike
and for sanctions and the order granting SEIU's motion to change trial date and
The Foundation argues that the trial court erred in (1) granting a permanent
injunction, (2) granting a preliminary injunction, and (3) granting a TRO. It also
argues that the trial court abused its discretion in granting SEIU's 925 motion to
change trial date and stay proceedings and denying its motion to strike and motion
I. The PRA
The PRA mandates the broad disclosure of public records. Resident Action
Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013). Under
RCW 42.56.070(1), a government agency must disclose public records upon
request unless the records fall within the specific exemptions of the PRA or other
statute that exempts or prohibits disclosure of specific information or records.
Ameriquest Mortq. Co. v. Office of Att'y Gen., 177 Wn.2d 467, 485-86, 300 P.3d
799 (2013). The exemptions in the PRA are intended to exempt from public
6 No. 76630-9-1/7
inspection those categories of public records most capable of causing substantial
damage to the privacy rights of citizens or damage to vital functions of government.
Id. at 486.
The party seeking to prevent disclosure bears the burden of establishing
that an exemption applies. Id. If it is a party besides an agency that is seeking to
prevent disclosure, then that party must seek an injunction. içj. at 487; RCW
42.56.540. In such a case, the party must prove (1) that the record in question
specifically pertains to that party, (2) that an exemption applies, and (3) that the
disclosure would not be in the public interest and would substantially and
irreparably harm that party or a vital government function. Ameriquest, 177 Wn.2d
at 487. Courts construe exemptions narrowly to allow the PRA's purpose of open
government to prevail where possible. Id.; RCW 42.56.030.
This court reviews challenges to an agency action under the PRA de novo.
RCW 42.56.550(3); Resident Action Council, 177 Wn.2d at 428. Appellate courts
stand in the shoes of the trial court when reviewing declarations, memoranda of
law, and other documentary evidence. Ameriquest, 177 Wn.2d at 478.
A. Permanent Injunction
The Foundation argues that the trial court erroneously granted a permanent
injunction for three reasons. First, it argues that SEIU 925 lacks standing. Second,
it asserts that the UW e -mails qualify as public records, because the e -mails
"clearly relate to the conduct of government and the performance of governmental
and proprietary functions." Third, it claims that, if there was any ambiguity as to
7 No. 76630-9-1/8
whether the e -mails qualified as public records, the PRA requires that ambiguities
be construed in favor of disclosure.
The Foundation asserts that SEIU 925 lacks standing, because it relies on
associational standing through Wood, but at the same time its primary argument
harms Wood and places him in legal jeopardy. Citing Hunt v. Wash. State Apple
Adver. Comm'n., 432 U.S. 333, 342-43, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977),
Save a Valuable Env't v. City of Bothell, 89 Wn.2d 862, 867, 576 P.2d 401 (1978),
and Intl Ass'n of Firefighters, Local 1789 v. Spokane Airports, 103 Wn. App. 764,
768, 14 P.3d 193 (2000) (Firefighters I), aff'd by, 146 Wn.2d 207, 45 P.3d 186, 50
P.3d 618 (2002) (Firefighters II), it argues that a party relying on associational
standing "cannot conduct litigation in a way that harms the interests of those it
claims to represent."
None of these cases stand for that principle. In Hunt, the United States
Supreme Court held that the Washington Apple Advertising Commission had
standing to challenge a North Carolina statute regulating the labeling of apples.
432 U.S. at 335, 345. In doing so the Court recognized,
An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Id. at 343. The Court focused on the harm the North Carolina statute caused the
apple growers, and not on any potential harm from litigation. Id. at 343-44.
8 No. 76630-9-1/9
Similarly in Save, our Supreme Court held that a nonprofit corporation or
association has standing where it shows that one or more of its members are
specifically injured by a government action. 89 Wn.2d at 867. And, the court in
Firefighters II used the same test for associational standing recognized in Hunt.
146 Wn.2d t 213-14. On the third factor, the court stated, "Monetary damages are
distinguishable from injunctive relief, in that injunctive relief generally benefits
every member of an employee association equally whereas the amount of
monetary damages an employee suffers may vary from employee to employee."
Id. at 214.
Under the test for associational standing, SEIU 925 has standing to bring
this action on behalf of Wood. First, Wood would have standing to sue in his own
right, as many of the documents at issue are his own records. Second, SEIU 925
seeks to protect records germane to its purpose of organizing faculty for the
purposes of collective bargaining. Third, the claim asserted does not require
Wood's participation, as UW acknowledged. Moreover, as the court observed in
Firefighters II, the injunction would benefit all of SEIU 925's members that would
be potentially affected by the disclosure of records.
SEIU 925 also brought this action on its own behalf. In its order granting
the permanent injunction, the trial court concluded,
SEIU 925 has standing in this matter to seek injunctive relief under [t]he PRA as a party to whom public records held by a public agency may pertain and under chapter 7.40 RCW as a party whose rights may be affected by the release to the public of non-public records. The trial court did not err.
9 No. 76630-9-1/10
2. Public Records
The Foundation argues next that the trial court erred in ruling that the e -
mails at issue did not qualify as public records under the PRA. It asserts that,
because the e -mails are held by an agency and "not purely personal," a strong
presumption exists that they relate to government conduct or a governmental or
proprietary function. Citing RCW 42.56.010(3), the Foundation argues, "Records
that contain information about public -sector union organizing or public faculty
issues and concerns clearly implicate government conduct and governmental
proprietary functions." The Foundation then gives "four reasons" why the e -mails
relate to the conduct of government or the performance of any governmental or
proprietary function, and therefore meet the definition of "public records."
Under the PRA, a " 'public record' includes any writing containing
information relating to the conduct of government or the performance of any
governmental or proprietary function prepared, owned, used, or retained by any
state or local agency regardless of physical form or characteristics." RCW
42.56.010. The parties here dispute the second element: whether the e -mails
"contain . . . information relating the conduct of government or the performance of
any governmental or proprietary function." jcj .
"Public record" is defined very broadly, encompassing virtually any record
related to the conduct of government. Does v. King County, 192 Wn. App. 10, 22,
366 P.3d 936 (2015). This broad construction is deliberate and meant to give the
public access to information about every aspect of state and local government. Id.
In Oliver v. Harborview Medical Center, 94 Wn.2d 559, 566, 618 P.2d 76 (1980),
10 No. 76630-9-1/11
the court held that medical records of a patient treated at a public hospital were
public records. The court reasoned that the records contained information of a
public nature, "i.e., administration of health care services, facility availability, use
and care, methods of diagnosis, analysis, treatment and costs, all of which . . .
relate to the performance of a governmental or proprietary function." Id. In
Tiberino v. Spokane County, 103 Wn. App. 680, 687-88, 13 P.3d 1104 (2000), the
court held that personal e -mails sent from Tiberino's county -owned computer were
public records because the county printed the e -mails in preparation for litigation
over her termination, a proprietary function.
In Nissen v. Pierce County, 183 Wn.2d 863, 869, 357 P.3d 45 (2015), our
Supreme Court held that text messages sent and received by a public employee
in the employee's official capacity are public records of the employer, even if the
employee uses a private cell phone. Of particular relevance to our case, the
Nissen court stated,
For information to be a public record, an employee must prepare, own, use, or retain it within the scope of employment. An employee's communication is "within the scope of employment" only when the job requires it, the employer directs it, or it furthers the employer's interests. This limits the reach of the PRA to records related to the employee's public responsibilities. Id. at 878-79 (quoting Greene v. St. Paul -Mercury Indem. Co., 51 Wn.2d 569, 573,
320 P.2d 311 (1958). Thus, whether an agency employee's record is subject to
disclosure hinges on if the record was prepared, owned, used, or retained within
the scope of employment. West v. Vermillion, 196 Wn. App. 627, 641, 384 P.3d
11 No. 76630-9-1/12
The facts of this case contrast with those in Nissen, but the court's analysis
is highly relevant to our inquiry. In Nissen, the records were communications sent
and received on a private device, but were within the employee's scope of
employment. 183 Wn.2d at 869. Here, the records at issue are predominantly e -
mails that UW employee, Wood, created and/or retained on servers owned and
operated by UW, a state agency, through his use of UW e-mail accounts. Although
Wood used the agency's server, we must determine whether he created the
records within his scope of employment.
The Foundation's "four reasons" for why the e -mails relate to the conduct of
government or the performance of a governmental or proprietary function, and
therefore meet the definition of "public records," are essentially one argument.
First, it claims that the e -mails "necessarily relate to government employment"
because they contain information "related to concerns about public employment
and efforts at labor organizing." Second, it asserts that the public university faculty
members' efforts to organize relate to the provision of public education, which is a
government function. Third, it argues that "records containing information about
public -sector labor organizing relate to a proprietary function of the government."
Fourth, it states that records with information that will affect state budgets and
financing relate to government conduct. These "four reasons" all fundamentally
assert that employees' efforts to organize and address faculty concerns relate to
a government function or conduct.
An employee's communication is within the scope of employment only when
the job requires it, the employer directs it, or it furthers the employer's interests.
12 No. 76630-9-1/13
Nissen, 183 Wn.2d at 878-79. "[E]mployees are `agent[s] employed by [an
employer] to perform service in his affairs whose physical conduct in the
performance of the service is controlled or is subject to the right to control by the
[employer]." Kamla v. Space Needle Corp., 147 Wn.2d 114, 119, 52 P.3d 472
(2002) (alterations in original) (quoting RESTATEMENT (SECOND) OF AGENCY § 2(2)
Actions undertaken within the scope of employment are those that the
employer has the right to control. But, laws such as the Educational Employment
Relations Act, chapter 41.59 RCW, and the Personnel System Reform Act of 2002,
chapter 41.80 RCW, make it an unfair labor practice for employers to try to interfere
with or control employees' union activities. E.g., RCW 41.59.140; RCW 41.80.110.
UW is prohibited from controlling or directing employees' union activity. RCW
41.76.050(1)(a) ("It is an unfair labor practice for a an employer to interfere with,
restrain, or coerce faculty members in the exercise of their rights guaranteed by
this chapter."). Further, the employees' communications do not fall within the
scope of their employment, even if in the future, these efforts affect appointment,
promotion, evaluation, tenure, or state budgets, as the Foundation proposes.
Documents relating to faculty organizing and addressing faculty concerns are not
within the scope of employment, do not relate to the UW's conduct of government
or the performance of government functions, and thus are not "public records"
subject to disclosure.
13 No. 76630-9-1/14
Finally, the Foundation argues that even if it was ambiguous that the e -mails
qualified as public records, the trial court erred in not resolving the ambiguity in
favor of disclosure. The text of the PRA and our case law is clear that courts are
to liberally construe the PRA in favor of disclosure and narrowly construe its
exemptions. RCW 42.56.030; see, e.q., John Doe A v. Wash. State Patrol, 185
Wn.2d 363, 371, 374 P.3d 63 (2016). But, the PRA's definition of "public record"
requires that the record relate to the conduct of government or the performance of
a governmental or proprietary function. RCW 42.56.010. And, under Nissen, for
information to be a public record, an employee must prepare, own, use, or retain
it within the scope of employment. 183 Wn.2d at 878-79. That did not occur here.
The trial court did not err in concluding that the records at issue are not
public records under the PRA. It did not err in granting SEIU 925's motion for a
B. Preliminary Injunction
The Foundation next argues that the trial court erroneously granted a
preliminary injunction on August 5, 2016. It argues that the trial court erred in
relying on Nissen, asserting that the "scope of employment test" in that case only
applies when records are on an employee's private devices or accounts.
In general, a party in a PRA case can obtain a TRO or a preliminary
injunction before establishing a right to a permanent injunction. SEIU Healthcare
775NW v. Dep't of Soc. & Health Servs., 193 Wn. App. 377, 392, 377 P.3d 214,
review denied, 186 Wn.2d 1016, 380 P.3d 502 (2016). A TRO and a preliminary
14 No. 76630-9-1/15
injunction both are designed to preserve the status quo until the trial court can
conduct a full hearing on the merits. Id. At a preliminary injunction hearing, the
trial court does not need to resolve the merits of the issues for permanent injunctive
relief. Id. Instead, the trial court considers only the likelihood that the moving party
ultimately will prevail at a trial on the merits. Id. at 392-93. One who seeks relief
by temporary or permanent injunction must show (1) that he has a clear legal or
equitable right, (2) that he has a well-grounded fear of immediate invasion of that
right, and (3) that the acts complained of are either resulting in or will result in
actual and substantial injury to him. Fed. Way Family Physicians, Inc. v. Tacoma
Stands Up for Life, 106 Wn.2d 261, 265, 721 P.2d 946 (1986). This court reviews
injunctions issued under the PRA de novo. SEIU Healthcare, 193 Wn. App. at
Following the standard of a preliminary injunction, the trial court found that
SEIU 925 "ha[d] demonstrated a likelihood of success on the merits of their claims
for injunctive relief." In the order granting SEIU 925's motion for preliminary
injunction, the trial court concluded that the records were not created within the
scope of the employee's employment and therefore are not public records. The
order further stated,
(1) Petitioner has established a clear legal or equitable right to nondisclosure of those parts of [the records] that have not already been disclosed as public records because they contain personal and private emails [sic] unrelated to the scope of Professor Robert Wood's employment at UW and cannot be categorized as public records; (2) a well-grounded fear of immediate invasion of that right by the disclosure of those records, and that (3) the release of those records will result in immediate, actual and substantial injury to Petitioner.
15 No. 76630-9-1/16
The Foundation attacks the trial court's legal conclusion that the scope of
employment test applies to the records at issue here. The Foundation asks this
court to find that public records under the PRA do not have to be created within
the scope of an employee's employment, as long as the records are on the public
As the Foundation points out, Nissen extended the PRA's reach to
employee's private devices. 183 Wn.2d at 877. The court stated,
[W]e find nothing in the text or purpose of the PRA . . . that only work product made using agency property can be a public record. To the contrary, the PRA is explicit that information qualifies as a public record "regardless of [its] physical form or characteristics." Id. (quoting RCW 42.56.010(3). But, the Nissen court did not expressly limit the
scope of employment test to private devices. And, it does not follow logically under
the Nissen analysis that communications on the employer's devices are
necessarily always public records. Such an inference would conflict with the
distinction drawn in Tiberino. See 103 Wn. App. at 683-4, 688 (personal e -mails
were public records not because they were on employer's computer, but because
the county printed the personal e -mails in preparation for litigation over Tiberino's
termination because of her personal use of e-mail). The trial court did not err in
granting a preliminary injunction.
C. Temporary Restraining Order
The Foundation also asserts that the trial court erred in granting a "sua
sponte" temporary restraining order on June 10, 2016. It asserts that the trial
court's TRO was "standardless."
16 No. 76630-9-1/17
One who seeks relief by temporary or permanent injunction must show (1)
that he has a clear legal or equitable right, (2) that he has a well-grounded fear of
immediate invasion of that right, and (3) that the acts complained of are either
resulting in or will result in actual and substantial injury to him. Fed. Way Family
Physicians, 106 Wn.2d at 265. To answer the question of whether a party has a
clear right, the trial court must analyze the moving party's likelihood of prevailing
on the merits. Id. In making this determination, the court does not adjudicate the
ultimate rights of the parties in the lawsuit. Id.
On June 10, the trial court entered the TRO, enjoining the release of
records, except those identified as "public records" and directed SEIU 925 to set a
hearing on or before July 6, 2016. In its oral ruling, the court stated,
I'm treating—I'm treating this as a temporary injunction rather than a full-blown preliminary injunction because I'm only granting the temporary relief to preserve the status quo so they can do the assessment of the documents. And so, I—I don't feel comfortable making those findings right now on this record alone. The parties had stipulated to a TRO pending the hearing on the preliminary
injunction. It was at that hearing the trial court entered the challenged TRO. The
effect was the same as if a continuance was ordered by the trial court on its own
motion. The purpose of the TRO was clear, to preserve the status quo while
awaiting additional information it felt was necessary to resolution of the motion for
the preliminary injunction. Preserving the status quo is an appropriate
consideration where the decision of the court is delayed.
The Foundation argues this delay via TRO was impermissible under Fed.
Way Family Physicians. There, the court refers to the trial court order
17 No. 76630-9-1/18
interchangeably as a preliminary injunction and a TRO. See Fed. Way Family
Physicians, 106 Wn.2d at 267-68. The trial court failed to state in the preliminary
injunction that respondents were likely to prevail on the merits. Id. at 265.
However, the court did not strike the injunction and remand because the trial court
made an incomplete order. Id. at 267. Instead, it did so because it found that there
was not substantial evidence before the trial court for it to conclude that the
respondents had a well-grounded fear of invasion of a legal right. See id. at 265-
67. Here, this court must determine whether there was substantial evidence before
the trial court when it entered the TRO.
Even assuming the TRO issued in Fed. Way Family Physicians is
,comparable to the TRO at issue here, the result is not the same. Before entering
the TRO, the trial court reviewed declarations SEIU 925 filed in support of its
motion for a temporary restraining order, including one from Wood, as well as
declarations from Patricia Flores, Brooke Lather, and others. In his declaration,
Wood refers to the union organizing in the documents. In their declarations, SEIU
925 organizers Patricia Flores and Brooke Lather put the e -mails into categories.
Those categories include (1) those about union organizing, (2) postings to the
AAUP UW chapter listserver, (3) e -mails between Wood and others not related to
UW business, and (4) e -mails that mention SEIU 925 specifically. The trial court
also reviewed declarations from the Freedom Foundation and Perry Tapper, a
compliance officer in the OPR at UW.
Based on these declarations, there was substantial evidence for the trial
court to conclude that SEIU 925 had a well-grounded fear of an invasion of its legal
18 No. 76630-9-1/19
right of nondisclosure of nonpublic records. It was reasonable for the court to
conclude that the Foundation would not suffer harm as a result of a temporary
delay in the release of any material that is subject to the PRA. While the trial court
should have made a more complete order, any error in not doing so was harmless.
The trial court did not err in entering the TRO.
II. SEIU 925's Motion to Stay and the Foundation's Motion for Sanctions
Finally, the Foundation argues that the court abused its discretion in
granting SEIU 925's motion to change trial date and stay proceedings, and in
denying its motions to strike and for sanctions.
A. Motion to Change Trial Date and Stay Proceedings
The Foundation argues that the trial court no longer had jurisdiction to grant
SEIU 925's motion to change trial date and stay proceedings, because the
Foundation had already filed a notice of appeal, on March 27, 2016, of the
A court's determination on a motion to stay proceedings is discretionary,
and is reviewed only for abuse of discretion. King v. Olympic Pipeline Co., 104
Wn. App. 338, 348, 16 P.3d 45 (2000). A trial court does not abuse its discretion
unless its decision is manifestly unreasonable or exercised on untenable grounds
or for untenable reasons. Eugster v. City of Spokane, 110 Wn. App. 212, 231, 39
P.3d 380 (2002).
RAP 7.2(a) provides that after review is accepted by the appellate court, a
trial court has authority to act only to the extent provided in RAP 7.2, unless the
appellate court limits or expands that authority as provided in RAP 8.3. RAP 7.2(e)
19 No. 76630-9-1/20
requires a party to seek the appellate court's permission before making a
determination that would change a decision currently under review.
SEIU 925 states that, after the Foundation appealed the order entering the
permanent injunction, it was under the impression that the trial scheduled to begin
April 24, 2017 would go forward, "at least as to the [unfair labor practice] claims."
With this understanding, SEIU 925 filed a motion on April 3, requesting that the
trial court change the trial date or stay proceedings pending the outcome of this
In its initial complaint, in addition to injunctive relief, SEIU 925 also sought
"an order finding that UW committed an unfair labor practice" in stating that it
intended to release material from the identified records at issue. In its order
granting a permanent injunction enjoining UW from release the nonpublic records,
the trial court did not address SEIU 925's claim against UW. For purposes of the
appeal, the order granting the injunction was final for one party, the Foundation,
but it had not addressed the unfair labor practices claim against UW. 3
RAP 7.2 and 8.3 are intended to keep a case from developing branches in
the absence of an appropriate order of the appellate court. Burton v. Clark County,
91 Wn. App. 505, 513 n.9, 958 P.2d 343 (1998). The trial court's decision to stay
was merely a procedural decision to preserve the posture of the case. On these
facts, the trial court's stay of proceedings pending the outcome of this appeal did
not run afoul of RAP 7.2.
3 That claim asserted a potential second basis for denial of the disclosure of the records sought. Even if the Foundation succeeded in this appeal, remand for consideration of the remaining claim would have been required.
20 No. 76630-9-1/21
B. Motions to Strike and to Impose Sanctions
The Foundation also asserts that the trial court abused its discretion in
denying its motion for sanctions, because SEIU 925 filed its motion "even though
the Foundation had repeatedly informed it that the Superior Court lacked
CR 11 is intended to address filings not grounded in fact and not warranted
by law, or filed for an improper purpose. Wood v. Battle Ground Sch. Dist., 107
Wn. App. 550, 574, 27 P.3d 1208 (2001). The decision to impose sanctions under
CR 11 is vested within the sound discretion of the trial court. Eller v. E. Sprague
Motors & R.V.'s, Inc., 159 Wn. App. 180, 189, 244 P.3d 447 (2010). Discretion is
abused when it is exercised on untenable grounds or for untenable reasons. Id.
After the court entered the permanent injunction, SEIU 925's spoke with the
Foundation and UW about its understanding that the unfair labor practice claim
was still intact, before filing its motion to change trial date. On this record, it does
not appear that SEIU 925 filed a baseless motion.
The trial court did not abuse its discretion in denying the Foundation's
motion for sanctions.