Gullen v. Pierce County
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68535-5
Title of Case: Ignacio Guillen
v.
Pierce County
File Date: 09/13/2001
Oral Argument Date: 11/16/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Pierce County;
96-2-13404-5
Honorable Frederick B. Hayes, Judge.
JUSTICES
--------
Authored by Bobbe J. Bridge
Concurring: Charles Z. Smith
Richard B. Sanders
Faith E Ireland
Richard P. Guy
Barbara A. Madsen
Gerry L. Alexander
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Daniel R. Hamilton
Deputy Pros Atny
955 Tacoma Ave S Ste 301
Tacoma, WA 98402
Susan P. Jensen
Pierce Co Prosecuting Aty
955 Tacoma Ave S Ste 301
Tacoma, WA 98402-2160
Counsel for Respondent(s)
Salvador A. Mungia Ii
Gordon Thomas Honeywell etal
PO Box 1157
Tacoma, WA 98401
Juliana K. Burnett
King Co Pros Office
PO Box 883
Bellevue, WA 98009
Darrell L. Cochran
Gordon Thomas Honeywell Malanca Peterson & Daheim
PO Box 1157
Tacoma, WA 98401-1157
David K. Dewolf
Casey Gore & Grewe
Rock Pointe Tower
Suite 880 316 W. Boone
Spokane, WA 99201
Amicus Curiae on behalf of Wa State Assn of Municipal Attorneys
William L. Cameron
Luce Lombino & Riggio
4505 Pacific Hwy E Ste a
Tacoma, WA 98424-2638
Amicus Curiae on behalf of Washington Association of Prosecutin
E B. Potter
Clark Co. Prosc. Atty Ofc
P.O. Box 5000
Vancouver, WA 98668
Amicus Curiae on behalf of State of Washington
William L. Williams
Senior Asst. Attorney General
PO Box 40100
Olympia, WA 98504-0100
Michael E. Tardif
Asst Atty Gen - Dl&i
PO Box 40126
Olympia, WA 98504-0126
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Gary N. Bloom
Harbaugh & Bloom
P.O. Box 1461
Spokane, WA 99210
Debra L. Stephens
6210 E Lincoln Ln
Spokane, WA 99207-9220
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
Counsel for Other Parties
Harold T. Dodge Jr.
Rush Hannula Harkins & Kyler
715 Tacoma Ave. S.
Tacoma, WA 98402
Garth L. Jones
Stritmatter Kessler Whelan Withey Coluccio
413 8th St
Hoquiam, WA 98550
Thomas J. West
Krilich La Porte West & Lockner PS
524 Tacoma Ave. So.
Tacoma, WA 98402-5416
Timothy Malarchick
Attorney At Law
Ste 310
4423 Point Fosdick Dr
Gig Harbor, WA 98335
Jeffrey F. Hale
Johnson Graffe Keay & Moniz (email Address Jeffh@jgkm.COM)
Ste 101
2115 N 30th St
Tacoma, WA 98403-3318
Philip I. Brennan Jr
Krilich La Porte West & Lockner
524 Tacoma Ave S
Tacoma, WA 98402-5416
Richard H. Benedetti
Davies Pearson Pc
920 Fawcett Avenue
P.O. Box 1657
Tacoma, WA 98402
Keith L. Kessler
Stritmatter Kessler Whelan Withey Coluccio
413 8th St
Hoquiam, WA 98550
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
IGNACIO GUILLEN, as legal
guardian for JENNIFER GUILLEN
and ALMA GUILLEN, minors; and
MARIANO GUILLEN, as legal
guardian for PAULINA GUILLEN
and FATIMA GUILLEN,
Respondents,
v.
PIERCE COUNTY, a municipal NO. 68535-5
corporation,
Petitioner,
THE ESTATE OF CLEMENTINA
GUILLEN-ALEJANDRE,
Defendant. EN BANC
- - - - - - - - - -
ROBERT and LuANN WHITMER,
husband and wife, individually,
and as the guardians of SHANNA
WHITMER, a minor, HANNAH
WHITMER, a minor, and DENEL Filed September 13, 2001
WHITMER, an incapacitated
person,
Respondents,
v.
CHIN S. YUK and 'JANE DOE' YUK,
husband and wife, and the
marital community composed
thereof, and CHANG CHOI and
'JANE DOE' CHOI, husband and
wife, and the community
composed thereof; CITY OF
LAKEWOOD, a municipal
corporation; PIERCE COUNTY, a
municipal corporation; and the
CITY OF TACOMA, a municipal
corporation,
Petitioners.
BRIDGE, J.--The respondents in these consolidated cases seek access to
accident reports and other materials and data held by the local government
petitioners relating to the traffic history of the sites of their subject
car accidents. Petitioners claim that all accident reports are
nondiscoverable, since RCW 46.52.080 declares them 'confidential' and
inadmissible. Petitioners also contend that all the materials and data at
issue are privileged under 23 U.S.C. sec. 409--and consequently also exempt
from public disclosure under RCW 42.17.310(j)--since they were, according
to sworn declarations in the record, 'compiled' or 'collected' by
petitioners pursuant to 23 U.S.C. sec. 152 so as 'to identify hazardous
locations, sections, and elements' on 'all public roads' that might prove
to be good candidates for federally funded safety enhancement projects.
Petitioners note that 23 U.S.C. sec. 409 was expressly amended by Congress
in 1995 to cover all 'reports, surveys, schedules, lists, or data compiled
or collected for the purpose of identifying, evaluating, or planning the
safety enhancement of potential accident sites, hazardous roadway
conditions, or railway-highway crossings, pursuant to sec.sec. 130, 144,
and 152 of this title.' We reject both arguments.
While RCW 46.52.080 exempts accident reports prepared by persons involved
in accidents from public disclosure or admission as evidence in certain
trials, we hold that they remain discoverable. Furthermore, we hold that
Congress' 1995 amendment to 23 U.S.C. sec. 409 violates the United States
Constitution's federalist design as defined by its framers and by the
United States Supreme Court, insofar as it makes state and local traffic
and accident materials and data nondiscoverable and inadmissible in state
and local courts, simply because they are also 'collected' and used for
federal purposes. We hold that only materials and data originally created
for the statutorily identified federal purposes are lawfully covered by the
federal privilege and, thus, exempt from public disclosure under RCW
42.17.310(j). Because there are insufficient facts in the record to apply
this standard to all of the disputed items in these consolidated cases, we
vacate the lower courts' rulings and remand for supplementation of the
record and further proceedings not inconsistent with this opinion.
FACTS
Guillen
On July 5, 1996, Ignacio Guillen's wife, Clementina Guillen-Alejandre, was
killed and her passengers injured in an automobile collision at the
intersection of 168th Street East and B Street East, in Pierce County.
Months earlier, on May 11, 1995, based on traffic and accident reports and
data in its possession, Pierce County had identified this intersection as
especially hazardous and applied for federal hazard elimination funds under
23 U.S.C. sec. 152. That application was denied. The County then reapplied
on April 3, 1996, and on July 26, 1996, three weeks after Guillen-
Alejandre's fatal accident, the application was granted.
A letter dated August 16, 1996, was sent on Guillen's behalf to the
County's Risk Management Department, requesting materials and data relating
to the intersection's accident history. The county prosecuting attorney's
office denied the request in a letter dated September 9, 1996, claiming the
history was privileged under 23 U.S.C. sec. 409 and RCW 42.17.310(j). In a
letter dated October 28, 1996, counsel for Guillen clarified his request:
'I want to make the record clear that we are not seeking any reports that
were specifically written for developing any safety construction
improvement project at the intersection at issue.' Clerk's Papers (CP) at
93.
However, on behalf of our clients, we are seeking a copy of all documents
that record the accident history of the intersection that may have been
used in the preparation of any such reports. In other words, we are simply
seeking information as to when accidents have occurred at the intersection
for the last ten years. This would include any documents that record (1)
the date of any such accidents, (2) the parties involved at each such
accident, (3) the date of each such accident {sic}, (4) fatalities, if any,
at each such accident, (5) the identification of all known accidents {sic}
at each such accident, (6) copies of photographs taken at each such
accident, (7) the configuration of the intersection (what traffic signs
existed) at the time of each such intersection {sic}, and (8) documents
recording traffic counts at the intersection.
Obviously, the documents we are requesting would not contain any
opinions by Pierce County representatives as to the safety of the
intersection. Instead, we are seeking documents pertaining to facts.
Id. at 93-94. In a letter dated November 12, 1996, the County reiterated
its refusal to release any of the requested materials or factual data
relating to the intersection other than a simple traffic count, claiming
that these were privileged under 23 U.S.C. sec. 409, since they represented
'data the County has compiled for the sole purpose of identifying{,}
evaluating or planning the safety enhancement of potential accident sites,
hazardous roadway conditions or for developing highway safety construction
improvement projects' pursuant to section 152. CP at 96.
A. Public Disclosure Request: On December 9, 1996, Guillen challenged that
denial of access in Pierce County Superior Court in a complaint filed under
RCW 42.17.340 of the public disclosure act (PDA). The County moved for
summary judgment under 23 U.S.C. sec. 409 and RCW 42.17.310(j). Guillen
filed a cross-motion for summary judgment. The trial court denied the
County's motion, but granted Guillen's cross-motion, ordering the County to
pay attorney fees under RCW 42.17.340(4) and to disclose the following
materials:
1. Motor vehicle traffic accidents by location--County of Pierce--
prepared by Records Section, Washington State Patrol {WSP}, 1/90 - 6/30/96.
. . .
10. Collision diagram dated 1/5/89 prepared by Georgia Fischer.
11. Collision diagram dated 7/18/88 prepared by Georgia Fischer.
. . .
13. Police Traffic Collision Reports and Motor Vehicle Reports from 1/1/90
prepared by {various} law enforcement agencies.
. . .
15. Draft letter to Barbara Gelman from Frederick L. Anderson with note to
file signed by Jim Ellison on 3/6/89.
CP at 20-21.1 The County sought appellate review of the trial court's PDA
ruling.2
B. Civil Discovery Request: While that appeal was still pending,
Guillen filed a separate tort action in Pierce County Superior Court,
claiming that the County's failure to install proper traffic controls at
the intersection was a negligent proximate cause of his wife's death. When
the County responded to his interrogatories by invoking 23 U.S.C. sec. 409
and RCW 42.17.310(j), Guillen moved to compel, whereupon the County moved
for a protective order. The court granted Guillen's motion, denied the
County's, and ordered pretrial discovery of the following materials and
data:
1. The identity of all employees, agents, or officials of Defendant
Pierce County who have knowledge of automobile accidents taking place at
the intersection at issue for the time period January 1, 1990 through July
4, 1996;
2. The identity of all persons within Pierce County's knowledge who
have been involved in automobile accidents at the intersection at issue for
the time period of January 1, 1990 through July 5, 1996;
3. The identity of all Pierce County deputy sheriffs who patrolled
the intersection at issue during the time frame of January 1, 1990 through
July 4, 1996;
4. The date, identity of all persons involved, and the identity of
all fatalities for each automobile accident occurring at the intersection
at issue for the time period of January 1, 1990 through July 5, 1996;
5. A copy of all photographs{} Pierce County has in its possession,
control or custody of accidents involving at least one automobile at the
intersection at issue from January 1, 1990 through July 6, 1996;
6. A copy of all written statements by witnesses to accidents at the
intersection at issue that occurred during the time period of January 1,
1990 through July 6, 1996; and
7. A copy of all accident reports sent to Pierce County from
individuals who had been involved in automobile accidents at the
intersection at issue from January 1, 1990 through July 4, 1996.
Amended Order Granting Pls.' Mot. to Compel Disc. at 1-2.
On December 7, 1998, the County successfully moved the Court of
Appeals for discretionary review and for consolidation of the case with
Guillen's appeal of the PDA ruling. The Court of Appeals issued its
decision on August 6, 1999, holding that the 23 U.S.C. sec. 409 privilege
covered only one of the disputed items. Accident reports were not covered,
the court ruled, since 'Guillen carefully requested reports in the hands of
the sheriff or other law enforcement agencies, not reports or data
'collected or compiled' by the Public Works Department 'pursuant to'
Section 152.' Guillen v. Pierce County, 96 Wn. App. 862, 873, 982 P.2d 123
(1999). In the final footnote of its opinion, though, the court raised a
more fundamental question regarding the constitutionality of sec. 409 as
amended in 1995:
It is arguable that Congress lacks the authority to dictate rules of
discovery and rules of admissibility for use in state court. In particular,
it is at least arguable that Congress lacks the authority to tell this
state, or any state, that it 'shall not' disclose or admit, in state court
litigation, 'reports . . . or data compiled or collected' by a state agency
(e.g., Pierce County's Public Works Department). Throughout this opinion,
we have assumed that section 409 is constitutional, because neither party
has raised or briefed that question.
Guillen, 96 Wn. App. at 875 n.26. We granted review on January 5, 2000.
Whitmer
On August 8, 1996, a Ford Taurus driven by petitioner Chin Yuk and
owned by petitioner Chang Choi turned from 75th Street West onto Custer
Road in Lakewood and collided with a Volkswagen being driven by respondent
Denel Whitmer along Custer Road. The intersection was designed with a stop
sign on 75th Street, but none on Custer Road for through traffic. Both
Denel and her sister Shana Whitmer, a minor, were knocked unconscious and
later diagnosed as having sustained brain injuries.
The Whitmer family filed a tort claim against, inter alia, the City of
Lakewood and Pierce County for negligent operation of the intersection. In
response to interrogatories requesting copies of publicly held materials
relating to that intersection's traffic and accident history, the
petitioners claimed such materials were privileged under 23 U.S.C. sec.
409. The Whitmers moved to compel discovery. On August 27, 1998, the trial
court denied the Whitmers' motion, ruling that local governments had
standing to invoke sec. 409 and that the privilege covered all of the
disputed materials. However, on February 11, 2000, the court reversed its
ruling, based on the Guillen decision, concluding that none of the
following documents was covered by the sec. 409 privilege:
{Section 409 Privilege} Claimed by Pierce County:
1. Multi-file Inventory Listing Detail: Computer Print out of
accident information that would be retained in computer file.
2. Accident Reports - Dated: 9/24/90, 7/21/93, 1/6/96, 6/11/90,
6/9/93, 3/28/90, 5/14/93, 11/13/91, 12/17/94, 9/25/92, 10/11/94, 4/24/92,
9/20/94, 7/31/90, 8/31/94, 4/2/91, 4/29/94, 12/11/92, 2/17/94, 9/25/92,
1/21/94, 9/3/92, 12/9/95, 7/27/92, 12/1/95, 4/24/92, 9/19/95, 3/13/92,
8/22/95, 2/25/92, 3/20/95, 9/24/93, 2/12/95, 4/2/93, 3/11/93, 4/7/93,
10/4/95, 10/6/95, 1/29/93, 4/20/92, 6/2/93, 11/23/94, 12/10/94, 1/27/90,
2/5/90, 4/7/93, 4/30/92, 5/7/92, 5/22/90, 8/4/92, 8/30/90, 11/1/91,
11/15/90, 11/21/91.
3. Computer Printout Pages 1990-1996; from 8/8/97 and 7/16/97;
containing summary information on dates of accidents.
4. Response to citizen complaint letter: original letter from
Margaret Smith to Thomas Ballard; response letter, date 2/8/91 from Thomas
Ballard to Margaret Smith concerning light and fixing cost of light at
approximately $125,000.
5. Table 1 - 24 - Vehicular Traffic Evaluations and Traffic Signal
Warrant Evaluation.
6. Pierce County Public Works Signal Warrant Form.
7. Vehicle Volume Summaries - Dated: 12/11/90, 8/1/88, 11/7/95,
11/8/95, 9/30/93, 7/18/89, 9/21/95, 9/20/95, 6/7/94, 10/14/93, 7/14/92,
10/25/90, 7/18/91, 7/20/89, 7/25/9 {sic}, 11/28/95, 7/14/92.
8. State of Washington Urban Arterial Board Project Prospectus,
revised 1/6/69.
9. Pierce County Six-Year Plans - 1990-1996.
{Section 409 Privilege} Claimed by City of Lakewood:
1. Memo; 5/14/96; from Rory Grindley, Associate Traffic Engineer; to
Bill Larkin, Engineering Manager, City of Lakewood; regarding Pierce County
Public Works and Utilities Transportation Service Traffic Division Review
of McDonald's Restaurant Traffic Impact Analysis.
2. Private Traffic Impact Analysis for Chevron at 74th Street West
and Lakewood Drive; 2/13/96.
3. 75th Street W. and Custer Road (Lakewood Drive) Intersection
Evaluation (augmenting Private Traffic Impact Analysis, supra #2); 4/10/96.
4. Private Traffic Impact Analysis for McDonald's at 75th Street W.
and Lakewood Drive; 4/30/96.
5. Handwritten extract of accident data for 75th Street W. and Custer
Road and for the Curve between 74th Street West and 75th Street West for
the years of 1994, 95, and 96.
6. Fax cover sheet; 2/12/97; from Grindley; to Larkin; transmitting
Pierce County Level of Service calculations for 74th Street West and
Lakewood Drive plus 'assumed signal timing info used.'
7. Handwritten notes and diagram of Custer Road at Lakewood Drive to
75th Street W. showing 'ADT COUNTS PM Peak'. 1 page.
8. City of Lakewood Six Year Comprehensive Transportation Program:
Amended 1997 & 1998 - 2003.
9. Documents associated with the Urban Arterial Trust Account (UATA)
Urban Program Application: including 'Transportation Improvement Board
Funding Application Arterial Inventory Sheet' (two types: representing
before and after the project).
Attachment A -Accident Reduction & Annual Benefit' pert{ai}ning to
intersection of 75th Street W. and Lakewood Drive.
'Attachment B - Annual Benefit Summary Sheet.'
'Transportation Improvement Board controlled Intersection Data
Continuation Sheet:' (two types: one pertaining to the intersection of 75th
Street W. and Custer Road and one pertaining to both that intersection and
the intersection of Lakewood Drive and Custer Road).
CP at 440-41. The trial court also ruled that the sec. 409 privilege did
not cover other requested materials identified as 'photographs,' 'notes,'
'letters,' 'memoranda,' 'bid sheets,' 'traffic signal priority array
summaries,' and 'cross reference sheets.' CP at 443-45.3 We granted direct
review in Whitmer, consolidated it with Guillen, and requested supplemental
briefing from all parties on issues relating to sec. 409's
constitutionality.
ISSUES
(1) Whether Washington law bars disclosure or discovery of accident
reports.
(2) Whether materials and data sought by the respondents in these
cases were 'compiled or collected' pursuant to 23 U.S.C. sec. 152 such that
they would be covered by the federal privilege established by 23 U.S.C.
sec. 409 as amended by Congress in 1995.
(3) Whether Congress exceeded its enumerated powers under the United
States Constitution by barring state and local courts from allowing
discovery of, or admitting into evidence, collections of state and local
traffic and accident materials and data originally created and collected
for state or local purposes and essential to the proper adjudication of
claims brought under state or local law, simply because such materials and
raw facts are also collected and used pursuant to a federal mandate to
identify especially hazardous traffic sites.
(4) Whether Guillen is entitled to attorney fees under the Public
Disclosure Act.
ANALYSIS
We conduct de novo review of summary judgment rulings, considering all
facts and reasonable inferences in the light most favorable to the
nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d
337, 341, 883 P.2d 1383 (1994).
I
First, we examine whether Guillen's disclosure claims pertaining to
accident reports are resolvable under Washington law.4 In November 1972,
Washington voters approved Initiative Measure No. 276, a 'strongly worded
mandate for broad disclosure of public records.' Spokane Police Guild v.
Liquor Control Bd., 112 Wn.2d 30, 33-36, 769 P.2d 283 (1989). See Laws of
1973, ch. 1. '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 42.17.020(36). While 'mindful of the right of individuals to privacy
and of the desirability of the efficient administration of government, full
access to information concerning the conduct of government on every level
must be assured as a fundamental and necessary precondition to the sound
governance of a free society.' RCW 42.17.010(11). In 1992, the following
public policy statement was added to the PDA's 'Public Records' section:
The people of this state do not yield their sovereignty to the agencies
that serve them. The people, in delegating authority, do not give their
public servants the right to decide what is good for the people to know and
what is not good for them to know. The people insist on remaining informed
so that they may maintain control over the instruments that they have
created. The public records subdivision of this chapter shall be liberally
construed and its exemptions narrowly construed to promote this public
policy.
RCW 42.17.251. Thus, as we have previously noted, the PDA's intent was
nothing less than the preservation of the most central tenets of
representative government, namely, the sovereignty of the people and the
accountability to the people of public officials and institutions. RCW
42.17.251. Without tools such as the Public Records Act, government of the
people, by the people, for the people, risks becoming government of the
people, by the bureaucrats, for the special interests. In the famous words
of James Madison, 'A popular Government, without popular information, or
the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or,
perhaps both.' Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James
Madison 103 (Gaillard Hunt, ed. 1910).
Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 251, 884
P.2d 592 (1994).
In any public disclosure dispute, the government bears the burden 'to
establish that refusal to permit public inspection and copying is in
accordance with a statute that exempts or prohibits disclosure in whole or
in part of specific information or records.' RCW 42.17.340(1).5 Pierce
County claims that the materials at issue in Guillen are exempt from public
disclosure under RCW 42.17.260(1):
Each agency, in accordance with published rules, shall make available for
public inspection and copying all public records, unless the record falls
within the specific exemptions of subsection (6) of this section, RCW
42.17.310, 42.17.315, or other statute which exempts or prohibits
disclosure of specific information or records.
RCW 42.17.260(1) (emphasis added).6
Section (j) of RCW 42.17.310, referenced in .260(1), exempts from
public disclosure any '{r}ecords which are relevant to a controversy to
which an agency is a party but which records would not be available to
another party under the rules of pretrial discovery for causes pending in
the superior courts.' While there was no pending superior court cause
stemming from the death of Guillen's wife and injuries to her passengers
when he made his PDA request, we have recognized that the PDA 'was not
intended to be used as a tool for pretrial discovery{,}' Limstrom v.
Ladenburg, 136 Wn.2d 595, 614 n.9, 963 P.2d 869 (1998), and have
accordingly construed the term 'controversy' in RCW 42.17.310(j) as
inclusive of past and present litigation as well as 'reasonably
anticipated' litigation. See Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d
995 (1993). Given the factual circumstances here, we find that litigation
involving Pierce County as a party was reasonably anticipated at the time
of Guillen's PDA request. Thus, any materials that would be nondiscoverable
in that anticipated litigation under 'rules of pretrial discovery for
causes pending in the superior courts,' such as CR 26(b), would also be
exempt from public disclosure under RCW 42.17.310(j).
Confidentiality of 'Accident Reports': We next consider whether
accident reports are subject to PDA requests. The Court of Appeals held
that '{t}he trial court properly granted Guillen's requests to disclose . .
. (d) accident reports sent to the County from citizens involved in
accidents at the intersection.' Guillen, 96 Wn. App. at 874. Had that
ruling been made solely in the context of a PDA lawsuit, it would have been
in error. RCW 46.52.080 specifically provides:
All required accident reports and supplemental reports and copies thereof
shall be without prejudice to the individual so reporting and shall be for
the confidential use of the county prosecuting attorney and chief of police
or county sheriff, as the case may be, and the director of licensing and
the chief of the Washington state patrol, and other officer or commission
as authorized by law, except that any such officer shall disclose the names
and addresses of persons reported as involved in an accident or as
witnesses thereto, the vehicle license plate numbers and descriptions of
vehicles involved, and the date, time and location of an accident, to any
person who may have a proper interest therein, including the driver or
drivers involved, or the legal guardian thereof, the parent of a minor
driver, any person injured therein, the owner of vehicles or property
damaged thereby, or any authorized representative of such an interested
party, or the attorney or insurer thereof. No such accident report or copy
thereof shall be used as evidence in any trial, civil or criminal, arising
out of an accident {with certain exceptions not relevant here}.
We have held that the phrase 'accident reports and supplemental
reports' in RCW 46.52.080 refers to reports prepared pursuant to RCW
46.52.030 (1) or .040 by persons involved in the accidents, not to official
'police officer's reports' or 'investigator's reports' prepared pursuant to
RCW 46.52.030 (3) or .070.7 Superior Asphalt & Concrete Co. v. Dep't of
Labor & Indus., 19 Wn. App. 800, 806, 578 P.2d 59 (1978) (noting RCW
46.52.080 'mandates confidentiality of reports made by persons involved in
an accident') (citing Gooldy v. Golden Grain Trucking Co., 69 Wn.2d 610,
419 P.2d 582 (1966)). While these 'accident reports' themselves are for the
confidential use of certain public officials and exempt from public
disclosure, RCW 46.52.080 and .083 entitle parties having 'a proper
interest' in the accident to disclosure of certain basic data contained in
those reports. Guillen, however, does not qualify, since the statute's
examples of qualifying parties clearly indicate a restricted understanding
of 'proper interest' that cannot reasonably be construed to include persons
involved in entirely different accidents at the same location.8
Discovery of 'Accident Reports': Still, simply because such accident
reports are 'confidential' and not subject to PDA requests does not mean
they are 'privileged' in the sense of being immune from CR 26, Washington's
broad civil discovery rule. In Mebust v. Mayco Mfg. Co., 8 Wn. App. 359,
506 P.2d 326 (1973), the court held that the 'confidential' statutory
status of certain documents 'does not place them beyond the reach of any
judicial process.' Id. at 361.9 It is certainly true that, under RCW
46.52.080, accident reports are 'privileged' in the sense that they are
inadmissible as evidence at trial. RCW 46.52.080 expressly provides, 'No
such accident report or copy thereof shall be used as evidence in any
trial, civil or criminal, arising out of an accident.'10 But the very fact
that this statute expressly bars admission of these reports as evidence at
trial without also barring their pretrial discovery is strong indication
that such reports are not 'privileged' in the sense of being exempt from CR
26(b)(1). We hold that there is no state law precluding Guillen from being
granted pretrial discovery in his tort case of relevant '(d) accident
reports sent to the County from citizens involved in accidents at the
intersection.' Guillen, 96 Wn. App. at 874.
II
Secondly, we examine petitioners' claim that the accident reports and
other materials and data in Guillen and Whitmer were 'compiled or
collected' pursuant to 23 U.S.C. sec. 152 such that they would be covered
by the federal privilege established by 23 U.S.C. sec. 409 as amended by
Congress in 1995. The burden of showing that a privilege applies in any
given situation rests entirely upon the entity asserting the privilege.
Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964). In its present form,
sec. 409 reads:
Notwithstanding any other provision of law, reports, surveys, schedules,
lists, or data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to
sections 130, 144, and 152 of this title or for the purpose of developing
any highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be subject to
discovery or admitted into evidence in a Federal or State court proceeding
or considered for other purposes in any action for damages arising from any
occurrence at a location mentioned or addressed in such reports, surveys,
schedules, lists, or data.
Legislative Background of sec. 409: The application of sec. 409 is a
question of first impression for this court. Other than Guillen, there
appears to be no Washington, Ninth Circuit, or United States Supreme Court
case law involving sec. 409. We begin our analysis by examining 23 U.S.C.
sec. 152, entitled 'Hazard elimination program,' one of the three
provisions11 referenced in sec. 409:
Each state shall conduct and systematically maintain an engineering survey
of all public roads to identify hazardous locations, sections, and
elements, including roadside obstacles and unmarked or poorly marked roads,
which may constitute a danger to motorists, bicyclists, and pedestrians,
assign priorities for the correction of such locations, sections, and
elements, and establish and implement a schedule of projects for their
improvement.
This 1973 statute apparently had a side effect not intended by
Congress. By forcing state and local governments to identify all 'public
roads' that 'may constitute a danger to motorists, bicyclists, and
pedestrians,' and to rank the most hazardous among them in writing,
Congress accorded private tort plaintiffs an added advantage in their
efforts to prove negligent governmental design or maintenance of certain
traffic sites. In 1987, Congress enacted 23 U.S.C. sec. 409 at least in
part to address this problem.12 Although Congress provided no statement of
legislative intent, courts have concluded that sec. 409 was designed to
prevent sec.sec. 130, 144 and 152 'from providing an additional, virtually
no-work tool for direct use in private litigation,' Light v. State, 560
N.Y.S.2d 962, 965, 149 Misc. 2d 75 (Ct. Cl. 1990) (emphasis added); see
also Perkins v. Ohio Dep't of Transp., 65 Ohio App. 3d 487, 584 N.E.2d 794,
802 (1989),13 and to ''facilitate candor in administrative evaluations of
highway safety hazards'' and in the implementation of federally funded
safety enhancements. Robertson v. Union Pac. R.R., 954 F.2d 1433, 1435 (8th
Cir. 1992) (quoting Duncan v. Union Pacific R.R., 790 P.2d 595, 597 (Utah
1990)).14
Early sec. 409 Case Law: For the next several years, most state courts
restricted the application of the federal privilege established in sec. 409
to 'reports, surveys, schedules, lists, or data' that had been specifically
created for the purpose of applying for federal safety improvement funding
or implementing a funded project. Such decisions often relied on the
admonition in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L.
Ed. 2d 1039 (1974), that privileges are 'exceptions to the demand for every
man's evidence' and are therefore 'not lightly created nor expansively
construed, for they are in derogation of the search for truth.' Id. at 710.15
These courts voiced strong objection to application of a federal privilege
in sec. 409 to traffic and accident materials and raw data prepared for
state and local purposes simply because they were also 'collected' for uses
related to sec.sec. 130, 144 and 152, an unacceptable outcome ridiculed as
'imprudent'16 and 'anomalous.'17
Shortly after sec. 409 was enacted, a Louisiana trial court construed
the privilege broadly to include ''all information gathered pursuant to the
federal programs covered by this statute.'' Martinolich v. S. Pac. Transp.
Co., 532 So. 2d 435, 437 (La. Ct. App. 1988) (emphasis added), writ denied,
535 So. 2d 745 (La. 1989), cert. denied sub nom. La. Dep't of Transp. &
Dev. v. Martinolich, Inc., 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d
1027 (1989). But that ruling was promptly vacated as 'clearly wrong.' Id.
Stressing the heavy presumption against federal preemption in an area of
law traditionally occupied by states such as 'regulation of {a state} court
system,' id. at 438, the Louisiana Court of Appeals adopted a more
conservative understanding of sec. 409:
Clearly Congress has not endeavored, by way of this statute {sec. 409}, to
occupy the field of Louisiana's evidentiary rules or our Code of Civil
Procedure. Where Congressional enactments do not exclude all state
legislation in the field, preemption is to the extent of the conflict
between them. . . . Because preemption is not presumed, we construe 23
U.S.C. sec. 409 restrictively, to intrude only so much as Congress has
expressly prescribed.
Id. A few years later, Louisiana's Supreme Court issued Wiedeman v. Dixie
Electric Membership Corp., 627 So. 2d 170 (La. 1993), cert. denied, 511
U.S. 1127 (1994). Consistent with sec. 409's perceived legislative purpose,
the Wiedeman court ruled that the privilege covered only the following
materials:
(1) surveys to identify hazardous railroad crossings and improve them
(sec. 130);
(2) applications for federal assistance in replacing or rehabilitating
highway bridges (sec. 144);
(3) studies assigning priorities and schedules of projects for highway
improvement (sec. 152); and,
(4) other compilations made for developing highway safety construction
projects which would utilize Federal-aid funds (sec. 409).
Id. at 173. The court flatly rejected, though, the 'expansive
interpretation that would protect data and raw facts,' ruling that the sec.
409 privilege did not include '(1) accident reports; (2) traffic counts;
and (3) other raw data collected by' the governmental agency responsible
for identifying and evaluating good candidates for safety enhancement
grants. Id. (emphasis added). 'Section 409 creates a privilege for
compilations enumerated in the statute, but the privilege does not extend
to reports and data gathered for or incorporated into such compilations.'
Id.18
In Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659 N.E.2d 817
(1995), the Ohio Court of Appeals agreed with the reasoning of Louisiana's
courts, rejecting a railroad company's contention that an expert affidavit
describing the number and nature of prior accidents at the railway crossing
in question was privileged under sec. 409:
If a dozen people had been killed at a site, a trier of fact might
reasonably infer that the site was dangerous. These dozen deaths would
naturally be included in statistics gathered for inclusion in official
reports made pursuant to Section 409. The question then becomes: Does the
fact that information of previous accidents at a site is included in
reports made under Section 409 make all evidence of the previous accidents
inadmissible? We think not. If all accidents are reported and no evidence
of prior reported accidents is admissible, a plaintiff could never meet the
burden of proof under {Ohio tort law}--an anomalous result.
Id. at 820.
In Kitts v. Norfolk & W. Ry., 152 F.R.D. 78 (S.D. W. Va. 1993), a West
Virginia court also construed sec. 409 narrowly, explaining that the
privilege 'clearly does not accord protection for documents or data
prepared or compiled for some entirely separate and distinct purpose, even
if the contents of the same, or parts thereof, eventually become
ingredients thrown into a soup kettle with a distinct flavor of safety
enhancement.' Id. at 81 (emphasis added).
Meanwhile, in Arizona, a wrongful death claim was filed after a train
collided with a milk truck driven by Mary Isbell's husband at an
uncontrolled railroad crossing. S. Pac. Transp. Co. v. Yarnell, 181 Ariz.
316, 890 P.2d 611, 612 (1995). 'The state and Southern Pacific argued that
{sec. 409} exempted from discovery not only the reports, surveys,
schedules, lists, or data compilations made for the purposes identified in
the statute, but also all the facts in those reports even if available from
other sources.' Id. The trial court granted the plaintiff's motion to
compel, concluding that sec. 409 'only protected the reports themselves,
and not the underlying facts.' Id. Arizona's Supreme Court agreed:
Construing the statute to cover all facts that ultimately end up in such
compilations, from whatever source derived, would go far beyond protecting
the safety enhancement process and indeed would turn that process on its
head. It would prevent the parties from proving claims that could otherwise
have been proven had there been no safety enhancement project. The {United
States} Supreme Court has held that the federal railroad safety enhancement
program does not preempt state damage claims.
But state damage claims can only be proved with facts. . . . {T}he
breadth of exemption from discovery and admissibility argued by Southern
Pacific and the state, and acknowledged by the court of appeals, would
sacrifice the state tort scheme on the altar of the federal statutory
scheme.
Id. at 613 (emphasis added) (citing CSX Transp., Inc. v. Easterwood, 507
U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993)).19 Observing that each
of the key terms in sec. 409--'reports,' 'surveys,' 'schedules,' 'lists'
and 'data'--corresponds to a specific term of art used in sec.sec. 130,
144, and 152,20 the court held 'that the documents exempt from discovery and
excluded from evidence under sec. 409 are precisely the documents described
and prepared under the authority of sec.sec. 130, 144, and 152, and no
others.' Id. at 614. By excluding from the privilege all facts and
materials 'that ultimately end up in such compilations,' the court
explained that it hoped to 'promote the integrity of the federal regulatory
scheme without compromising the integrity of the parallel state tort
system.' Id. at 614-15.21
1995 Amendment to sec. 409: The United States Congress evidently
disagreed with such restricted readings of sec. 409 by state courts, and in
1995 amended the statute by inserting two words after the word 'compiled':
'or collected.' Lest there be any doubt regarding its intentions in doing
so, Congress published an accompanying 'clarification' in the Congressional
Record:
This section amends section 409 of title 23 to clarify that data
'collected' for safety reports or surveys shall not be subject to discovery
or admitted into evidence in Federal or State court proceedings.
This clarification is included in response to recent State court
interpretations of the term 'data compiled' in the current section 409 of
title 23. It is intended that raw data collected prior to being made part
of any formal or bound report shall not be subject to discovery or admitted
into evidence in a Federal or State court proceeding or considered for
other purposes in any action for damages arising from any occurrence at a
location mention{ed} or addressed in such data.
H.R. Rep. 104-246 sec. 328, at 59 (1995) (emphasis added); see Act of Nov.
28, 1995, Pub. L. No. 104-59, 1995 U.S.C.C.A.N. (109 Stat.) 591.
State Court Resistance: It is a well-recognized rule of statutory
construction that 'where a law is amended and a material change is made in
the wording, it is presumed that the legislature intended a change in the
law.' Home Indem. Co. v. McClellan Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d
389 (1969) (citing Alexander v. Highfill, 18 Wn.2d 733, 140 P.2d 277
(1943)). However, despite Congress' 1995 amendment and 'clarification,' a
few state courts have understandably remained reluctant to construe sec.
409 in a manner that effectively creates a legal black hole into which
state and local governments can drop virtually all accident materials and
facts, simply by showing that such materials and 'raw data' are also
'collected' and used to identify and rank candidates for federal safety
improvement projects statewide, pursuant to sec. 130, 144, or 152. See,
e.g., Palacios v. La. & Delta R.R., 82 So. 2d 806 (La. Ct. App. 1996)
(relying on Wiedeman despite Congress' 1995 amendment), vacated, 740 So. 2d
95 (La. 1999) (recognizing Congress' intent in 1995 to extend the sec. 409
privilege to all 'collected' data); Isbell ex rel. Isbell v. State, 198
Ariz. 291, 9 P.3d 322 (2000) (rejecting claims that Congress' 1995
amendment had undermined its narrow Yarnell decision).22 Still, most state
courts have considered themselves obligated by the Supremacy Clause to try
to absorb the 'harsh' impact on state and local courts of sec. 409 as
amended in 1995. Coniker v. State, 695 N.Y.S.2d 492, 495, 181 Misc. 2d 801
(1999).23
Statutory Application: We turn to the materials at issue in these
consolidated cases to determine whether they were 'compiled or collected'
pursuant to sec. 152 such that they would be covered by the sec. 409
privilege as amended in 1995.
According to sworn declarations in the record, even prior to the accident
that killed Guillen's wife, Pierce County had specifically collected and
reviewed all the disputed accident reports, photos, witness statements,
collision diagrams, and other traffic and accident data relating to the
intersection of 168th Street East and B Street East and had then sought
sec. 152 funding to enhance its safety. Mot. for Discretionary Review, App.
8, Ex. A, Decl. of Thomas Ballard at 2. According to Thomas Ballard, Pierce
County's Engineer, sec. 152 safety enhancements were specifically designed
for that intersection, and all disputed items in Guillen 'are reports and
data compiled for those purposes.' Id. Prospectuses compiled based on those
collected traffic and accident materials and data were then sent to
Washington's Department of Transportation (DOT) 'in application for federal-
aid highway funds available under 23 U.S.C. sec. 152.' Id.
The 'public road' at issue in Whitmer, while also eligible for
consideration under sec. 152,24 had not previously been the subject of an
application for sec. 152 funds. The petitioners contend, however, that sec.
152's record-keeping mandate was one of the reasons they maintained their
collections of accident reports, accident photos, correspondence, and other
raw data relating to that intersection, and that those materials are
therefore protected by the sec. 409 privilege. In a sworn declaration filed
in Whitmer, Ballard explained how applications for federal sec. 152 funding
are made in practice:
I have directed my employees to collect and compile reports, surveys,
schedules, lists, and other data for the purpose of identifying,
evaluating, or planning the safety enhancement of potential accident sites
or hazardous roadway conditions pursuant to 23 U.S.C. 152 within
unincorporated Pierce County which prior to incorporation {by Lakewood in
1996} included the intersection of Custer Road and 75th street.
. . .
When a new allotment of section 152 money becomes available, the state
gives localities such as Pierce County a deadline for identifying roads
which are candidates for such funding. As part of the application process,
localities need to provide the state specific information about the road in
question, which helps the state and federal government prioritize the
project and determine whether section 152 funds should be used for the
given project. The information on the application includes traffic
accidents, traffic counts, narrative descriptions of location, the proposed
solutions{,} etc.{,} for the roadway in question. The time frame between
notification that section 152 funding is available, and the deadline for
the application process, is limited, requiring localities to have studies,
reports, and data readily available for purposes of seeking section 152
funding.
CP at 292-93. According to a Deputy Assistant Secretary at the Washington
State Department of Transportation (WSDOT) who supervised sec. 152 federal
hazard elimination grant applications:
The state requires Pierce County and all other counties{} to designate a
primary road system within their counties, and to classify roads based on
the volume of traffic, speeds, etc.{} The counties are required to monitor
these roads and to collect data, reports and studies so as to determine
whether a particular roadway is an appropriate candidate for funding under
23 USC sec. 152, so as to enhance its safety. The intersection of Custer
Road and 75th Street is included within this system, and is eligible for
consideration of sec. 152 funding. The reports, studies, data, etc.
compiled for this intersection are considered when evaluating the roads
throughout the state which are eligible for sec. 152 funding and are
prioritized accordingly.
CP at 296, Decl. of Wayne T. Gruen, P.E., at 2.
Based upon these sworn declarations in the record, the accident reports,
photos, collision diagrams, and other related materials and 'raw data'
sought by the respondents in these consolidated cases would appear to be
covered by sec. 409 as amended in 1995. We simply cannot accept the Court
of Appeals' distinction in Guillen between collections of traffic and
accident related materials and raw data 'as held' by Pierce County's Public
Works Department, a local government agency involved in 'section 152
activity,' and collections of traffic and accident related materials and
raw data 'as held' by Pierce County's Sheriff's Office, which the court
presumed was in no way involved in 'section 152 activity.' 96 Wn. App. at
871. We find such a distinction unsound in principle and unworkable in
practice.
Congress' 1995 amendment made clear that sec. 409 covers all 'reports' and
'raw data' publicly 'collected' for, inter alia, the sec. 152 purpose of
'identify{ing} hazardous locations, sections, and elements . . . , which
may constitute a danger to motorists, bicyclists, and pedestrians{.}' 23
U.S.C. sec. 152. Since no one can predict ahead of time which 'locations,
sections, and elements' will distinguish themselves over time as especially
'danger{ous} to motorists, bicyclists, and pedestrians' and therefore good
candidates for federal safety enhancement funds, sec. 152 requires
jurisdictions to 'systematically maintain' complete, ongoing collections of
all accident related materials and data on 'all public roads.' 23 U.S.C.
sec. 152. Thus, sec. 152's record-keeping mandate requires that Pierce
County maintain not only accident materials and data on traffic sites that
its Public Works Department has already identified as good candidates for
sec. 152 safety enhancement funds, such as the intersection in Guillen, but
also accident materials and data relating to traffic sites that its Public
Works Department has not yet identified as hazardous, such as the
intersection in Whitmer. All such records are 'collected' pursuant to sec.
152.
Furthermore, it cannot be assumed that all state and local governments
maintain multiple sets of materials such as accident reports, each held by
a separate agency for a different use. While larger jurisdictions might
'systematically maintain' one set of accident reports at their law
enforcement department and a second set at their 'Department of
Transportation,' or 'Public Works Department,' smaller jurisdictions would
likely have one collection of accident reports, photos, and witness
statements prepared by their law enforcement personnel, which would be
consulted from time to time to identify especially hazardous sites, as
mandated by sec. 152.
Applying sec. 409 only to accident reports 'as held' by one agency of a
local government but not 'as held' by another, and only to copies of a
report but not to originals, is also unsound and unworkable given the fact
that such legal distinctions are already being rendered meaningless by the
electronic revolution underway. As governments everywhere move from paper
and microfiche documentation into the age of twenty-first century
information technology, public records are increasingly being stored--even
created--in digital format, then added to virtual databases that are
accessed, in streams of bits and bytes, by vast networks of governmental
agencies, often across jurisdictional boundaries. Today's technology would
already permit a responding law enforcement officer to type up an
electronic accident report, complete with accident photographs, collision
diagrams, and witness statements, and instantly send those files via
satellite to a database accessible by multiple agencies for multiple
purposes, only one of which would be to identify particularly hazardous
sites in a given jurisdiction that may be good candidates for sec. 152
safety enhancements.
Under the Court of Appeals' approach, such an electronic database of
accident reports would be covered by the sec. 409 privilege as amended in
1995, even if it were the only existing collection of accident reports and
data, without which state and local courts could not properly adjudicate a
variety of claims brought under state and local law. Were we to rely on the
Court of Appeals' distinctions in applying the sec. 409 privilege,
information technology would soon create a situation that the Court of
Appeals itself recognized as 'absurd,' namely, 'giv{ing} the County carte
blanche to render immune from discovery every accident report related to a
public road within its territory{.}' Guillen, 96 Wn. App. at 872.
III
We next turn to the examination of a more fundamental question, raised
by the Court of Appeals itself in the final footnote of its Guillen
opinion, namely, whether the United States Constitution entitles Congress
to 'tell this state, or any state, that it 'shall not' disclose or admit,
in state court litigation, 'reports . . . or data compiled or collected' by
a state agency (e.g., Pierce County's Public Works Department).' 96 Wn.
App. at 875 n.26. Specifically, we consider whether the 1995 amendment to
23 U.S.C. sec. 409 is constitutional and thus enforceable in state and
federal courts, a question requiring analysis of federal preemption of
state law, private parties' standing to raise federalist challenges, and
the limits of Congressional power.
(a) Express Preemption: There is a strong presumption against federal
preemption of state police powers, and such presumption is even stronger in
areas of the law where states have traditionally exercised their
sovereignty. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 79, 896 P.2d 682
(1995). Deciding what materials or data are discoverable or admissible in
cases brought in state court under state law is unquestionably an area
where states have traditionally exercised their sovereignty. Still, 'that
presumption can be overcome if Congress intends that the federal law
preempt state law.' All-Pure Chem. Co. v. White, 127 Wn.2d 1, 5, 896 P.2d
697 (1995).25
Here, Congress clearly intended that the sec. 409 privilege preempt
state laws and court rules governing pretrial discovery and the
admissibility of evidence at trial. Not only does the statute begin with
the words, 'Notwithstanding any other provisions of law,' but it
specifically declares that the privilege is applicable in 'Federal or State
court.' Such language leaves no doubt that this federal statute was
designed to be expressly preemptive. See Dep't of Transp. v. Superior Court
(Tate), 47 Cal. App. 4th 852, 854, 55 Cal. Rptr. 2d 2, 4 (1996);
Martinolich v. S. Pac. Transp., 532 So. 2d at 437.
However, state law cannot be preempted by an unconstitutional federal
law. The Supremacy Clause, U.S. Const. art. VI, cl. 2, provides:
This Constitution, and the Laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound thereby, any thing in
the Constitution or laws of any state to the contrary notwithstanding.
Thus, state judges are constitutionally required only to uphold 'laws of
the United States which shall be made in pursuance {of the United States
Constitution}.' U.S. Const. art. VI, cl. 2 (emphasis added).26 Federal laws
that exceed Congress' enumerated constitutional powers are unenforceable in
state court--just as they are in federal court--whether or not Congress
intended its laws to preempt 'the Constitution or laws of any state.'
Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410
(1991).
(b) Standing: We next consider the issue of standing. Several courts
have recognized, explicitly or implicitly, that private parties have
standing to challenge the constitutionality of federal laws on federalist
grounds, even when not joined by a state government. See, e.g., Seniors
Civil Liberties Ass'n v. Kemp, 965 F.2d 1030, 1033 n.6 (11th Cir. 1992);
Atlanta Gas Light Co. v. United States Dep't of Energy, 666 F.2d 1359, 1369
n.16 (11th Cir. 1982) (citing Helvering v. Davis, 301 U.S. 619, 637, 640,
57 S. Ct. 904, 81 L. Ed. 1307 (1937); Steward Mach. Co. v. Davis, 301 U.S.
548, 573, 585, 57 S. Ct. 883, 81 L. Ed. 1279 (1937)); but see Vt. Assembly
of Home Health Agencies, Inc. v. Shalala, 18 F. Supp. 2d 355, 370-71 (D.
Vt. 1998). As Justice O'Connor commented in dicta in New York v. United
States, 505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992):
The Constitution does not protect the sovereignty of States for the benefit
of the States or state governments as abstract political entities, or even
for the benefit of the public officials governing the States. To the
contrary, the Constitution divides authority between federal and state
governments for the protection of individuals. State sovereignty is not
just an end in itself: 'Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.'
Id. at 181 (quoting Coleman v. Thompson, 501 U.S. 722, 759, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991) (Blackmun, J., dissenting)).
Where Congress exceeds its authority relative to the States,
therefore, the departure from the constitutional plan cannot be ratified by
the 'consent' of state officials. An analogy to the separation of powers
among the branches of the Federal Government clarifies this point. The
Constitution's division of power among the three branches is violated where
one branch invades the territory of another, whether or not the encroached-
upon branch approves the encroachment.
New York, 505 U.S. at 182 (emphasis added). We agree with this reasoning
and hold that private respondents are not deprived of standing to challenge
the constitutionality of a federal law on federalism grounds simply because
state officials oppose the challenge.
(c) Enumerated Powers: Finally, we examine the merits of the
federalism challenge. The final provision of the Bill of Rights guarantees
that '{t}he powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states
respectively, or to the people.' U.S. Const. amend. X. While the Tenth
Amendment was once viewed as little more than a meaningless truism, see
United States v. Darby, 312 U.S. 100, 124, 61 S. Ct. 451, 85 L. Ed. 609
(1941), the United States Supreme Court has recently signaled a renewed
commitment to enforcing the principle of dual sovereignty implicit in the
American constitutional framework and made explicit in the Tenth Amendment,27
stressing that '{t}he Constitution created a Federal Government of limited
powers.' Gregory, 501 U.S. at 457. As James Madison explained prior to the
Constitution's ratification:
The powers delegated by the proposed Constitution to the Federal
Government, are few and defined. Those which are to remain in the State
Governments are numerous and indefinite. . . . The powers reserved to the
several States will extend to all the objects which, in the ordinary course
of affairs, concern the lives, liberties and properties of the people; and
the internal order, improvement, and prosperity of the State.
The Federalist, No. 45 (James Madison) at 313 (Jacob E. Cooke ed. 1961).
Alexander Hamilton predicted that federalism would enhance America's
democracy by creating additional checks and balances:
Power being almost always the rival of power; the General Government will
at all times stand ready to check the usurpations of the state governments;
and these will have the same disposition toward the General Government. The
people, by throwing themselves into either scale, will infallibly make it
preponderate. If their rights are invaded by either, they can make use of
the other, as the instrument of redress.
The Federalist, No. 28 (Alexander Hamilton) at 179 (Jacob E. Cooke ed.
1961) (emphasis added). The Court recently remarked about Hamilton's
statements:
One fairly can dispute whether our federalist system has been quite as
successful in checking {Federal} government abuse as Hamilton promised, but
there is no doubt about the design. If this 'double security' is to be
effective, there must be a proper balance between the States and the
Federal Government. These twin powers will act as mutual restraints only if
both are credible. In the tension between federal and state power lies the
promise of liberty.
Gregory, 501 U.S. at 459.28 Of course, as the Court noted,
The Federal Government holds a decided advantage in this delicate
balance: the Supremacy Clause. . . . As long as it is acting within the
powers granted it under the Constitution, Congress may impose its will on
the States. Congress may legislate in areas traditionally regulated by
States. This is an extraordinary power in a federalist system. It is a
power that we must assume Congress does not exercise lightly.
Id. at 460. Lightly or not, Congress has exercised this 'extraordinary
power' to such an extent in the past several decades that the highest court
in the judicial branch of the federal government has found it necessary in
a string of recent cases to invalidate laws that the federal government
lacked constitutional authority to impose on the states.29
While duly enacted federal legislation is presumed constitutional,
that presumption can be rebutted 'upon a plain showing that Congress has
exceeded its constitutional bounds.' United States v. Morrison, 529 U.S.
598, 607, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). We therefore evaluate
whether Congress acted outside its enumerated powers when it amended 23
U.S.C. sec. 409 in 1995. The petitioners argue that Congress had the power
to enact the 1995 amendment under the Spending Clause,30 the Commerce
Clause,31 and the Necessary and Proper Clause.32
(1) Spending Clause: The Spending Clause entitles Congress 'to pay the
debts and provide for the common defense and general welfare of the United
States.' U.S. Const. art. I, sec. 8, cl. 1. Over the years, Congress has
often sought to influence state behavior by conditioning the receipt of
federal funds upon behavioral changes. The United States Supreme Court has
declared such a practice constitutional, see United States v. Butler, 297
U.S. 1, 66, 56 S. Ct. 312, 80 L. Ed. 477 (1936), provided Congress'
conditions are 'relevant' and 'reasonably related' to a valid federal
interest in a specific national project or program. South Dakota v. Dole,
483 U.S. 203, 208, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987). In Dole, the
Court held that 23 U.S.C. sec. 158 was constitutional, finding that
conditioning receipt of federal highway funds on state enactment of minimum
drinking age laws was a proper exercise of Congress' spending power. The
Court noted, though, that the 'spending power is of course not unlimited,
but is instead subject to several general restrictions articulated in our
cases.' Id. at 207 (citation omitted).
{First,} the exercise of the spending power must be in pursuit of 'the
general welfare.' In considering whether a particular expenditure is
intended to serve general public purposes, courts should defer
substantially to the judgment of Congress. Second, we have required that if
Congress desires to condition the States' receipt of federal funds, it
'must do so unambiguously . . . .' Third, our cases have suggested (without
significant elaboration) that conditions on federal grants might be
illegitimate if they are unrelated 'to the federal interest in particular
national projects or programs.' Massachusetts v. United States, 435 U.S.
444, 461{, 98 S. Ct. 1153, 1164, 55 L. Ed. 2d 403} (1978) (plurality
opinion).{33} See also Ivanhoe Irrigation Dist. v. McCracken, {357 U.S. 275,
295, 78 S. Ct. 1185, 2 L. Ed. 2d 1313 (1958)}, ('{T}he Federal Government
may establish and impose reasonable conditions relevant to federal interest
in the project and to the over-all objectives thereof'). Finally, we have
noted that other constitutional provisions may provide an independent bar
to the conditional grant of federal funds.
Id. at 207-08 (some citations omitted).34
The petitioners rely on the Spending Clause as a source of
congressional authority to enact 23 U.S.C. sec. 409. In Martinolich, cited
supra at 18, the Louisiana Court of Appeals applied the Dole Court's four-
part test and concluded that sec. 409 was authorized under the Spending
Clause:
A state's regulation of its court system is in our opinion as fundamental a
function of its sovereignty as the normal exercise of its police power even
in matters concerning the health and safety of its citizens. Congress'
intrusion, in this instance, however, is constitutionally permissible
because Louisiana's participation in the federal funding scheme is
voluntary; because the improvement of state highways with federal funds is
in pursuit of '{providing} for the general welfare' as provided in U.S.
Const. Art. I, sec. 8, cl. 1 ('spending power'); because it is clear that
participation in the funding program requires acquiescence to the
intrusion; and, finally, because the intrusion is related to a valid
federal interest (inasmuch as 23 U.S.C. sec. 409 encourages participation
in a scheme that ensures, by prioritization, deliberative spending of
federal funds).
Martinolich, 532 So. 2d at 438 (citing Dole, 483 U.S. at 207-08). The
Martinolich court, though, was asked to analyze Congress' power to enact 23
U.S.C. sec. 409 in its pre-1995 form, when by its own terms the privilege
applied only to materials specifically 'compiled,' or created, pursuant to
sec.sec. 130, 144, and 152. The connection to a federal purpose was
therefore clear: but-for the federal mandates, such materials would not
exist. Here, by contrast, we must decide whether the Spending Clause
authorizes Congress to bar state courts from permitting discovery of
accident reports and other traffic and accident materials and data prepared
for state and local purposes, simply because those publicly held materials
are also 'collected' and used for federal purposes. We conclude that it
does not.
While the Spending Clause entitles Congress to offer states the option
of accepting federal funds 'with strings attached'--even when those
'strings' interfere with the basic functioning of state government, as they
do here--the United States Supreme Court has made it clear that Congress
may do so only if those 'strings' are also firmly 'attached' to a
legitimate federal interest in a specific federal project or program. See
Dole, 483 U.S. at 208.35 We find that no valid federal interest in the
operation of the federal safety enhancement program is reasonably served by
barring the admissibility and discovery in state court of accident reports
and other traffic and accident materials and 'raw data' that were
originally prepared for routine state and local purposes, simply because
they are 'collected,' for, among other reasons, pursuant to a federal
statute for federal purposes.
(2) Commerce Clause: Congress has authority '{t}o regulate commerce .
. . among the several states.' U.S. Const. art. I, sec. 8, cl. 3. The
United States Supreme Court has repeatedly redefined the limits of that
power 'as our Nation has developed.' United States v. Lopez, 514 U.S. 549,
552-57, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).
In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465,
49 L. Ed. 2d 245 (1976), the Court found that Congress lacked Commerce
Clause authority to apply the Fair Labor Standards Act's federal minimum
wage and maximum hour provisions to state and local government employees,
because the law effectively displaced state authority in 'areas of
traditional governmental functions.' Id. at 852. The Court explained:
If Congress may withdraw from the States the authority to make those
fundamental employment decisions upon which their systems for performance
of these functions must rest, we think there would be little left of the
States' ''separate and independent existence.'' Coyle, 221 U.S., at 580, 31
S. Ct., at 695. . . . Congress has sought to wield its power in a fashion
that would impair the States' 'ability to function effectively in a federal
system,' Fry, 421 U.S., at 547 n.7, {95 S. Ct., at 1796}. This exercise of
congressional authority does not comport with the federal system of
government embodied in the Constitution. We hold that insofar as the
challenged amendments operate to directly displace the States' freedom to
structure integral operations in areas of traditional governmental
functions, they are not within the authority granted Congress by Art. I,
sec. 8, cl. 3.
Id. at 851-52.36
Less than a decade later, in a 5-4 majority opinion, the Court
overturned National League of Cities as 'unsound in principle and
unworkable in practice.' Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528, 546. 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985).
{T}he fundamental limitation that the constitutional scheme imposes on the
Commerce Clause to protect the 'States as States' is one of process rather
than one of result. Any substantive restraint on the exercise of Commerce
Clause powers must find its justification in the procedural nature of this
basic limitation, and it must be tailored to compensate for possible
failings in the national political process rather than to dictate a 'sacred
province of state autonomy.'
Id. at 554. The Garcia Court thus embraced James Madison's faith that the
federal government 'will partake sufficiently of the spirit {of the States}
to be disinclined to invade the rights of the individual States, or the
prerogatives of their governments.' The Federalist, No. 46 (James Madison)
at 319 (Jacob E. Cooke ed. 1961).37
{T}he principal and basic limit on the federal commerce power is that
inherent in all congressional action--the built-in restraints that our
system provides through state participation in federal governmental action.
The political process ensures that {federal} laws that unduly burden the
States will not be promulgated.
Garcia, 469 U.S. at 556.38 Chief Justice Burger and Justices Powell,
Rehnquist and O'Connor warned in dissent that the majority's decision
'substantially alters the federal system embodied in the Constitution.' Id.
at 557 (Powell, J., dissenting). Although Garcia has not been formally
overruled, its precedential authority has been fundamentally eroded by
recent decisions such as Lopez and Morrison.
In Hodel v. Indiana, 452 U.S. 314, 101 S. Ct. 2376, 69 L. Ed. 2d 40
(1981), a pre-Garcia case that does not appear to have been similarly
undermined, the Court applied a nexus test to challenges to the reach of
congressional authority via the Commerce Clause:
A complex regulatory program such as established by the {Surface Mining}
Act can survive a Commerce Clause challenge without a showing that every
single facet of the program is independently and directly related to a
valid congressional goal. It is enough that the challenged provisions are
an integral part of the regulatory program and that the regulatory scheme
when considered as a whole satisfied this test.
Id. at 329 n.17 (citing Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 262, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); Katzenbach v.
McClung, 379 U.S. 294, 303-04, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964)).
The Court applied the Commerce Clause nexus requirement more recently
in Lopez.
First, Congress may regulate the use of the channels of interstate
commerce. . . . Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate
activities. . . . Finally, Congress' commerce authority includes the power
to regulate those activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect interstate
commerce.
Lopez, 514 U.S. at 558-59 (citations omitted). The Court then examined the
Gun-Free School Zones Act's official Commerce Clause rationale--that the
presence of firearms around schools adversely affected the quality of
education, thereby adversely affecting future interstate commerce--and
concluded that the requisite nexus to interstate commerce activity was
missing. Id. at 564-67.
To uphold the Government's contentions here, we would have to pile
inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general police power
of the sort retained by the States. Admittedly, some of our prior cases
have taken long steps down that road, giving great deference to
congressional action. . . . The broad language in these opinions has
suggested the possibility of additional expansion, but we decline here to
proceed any further. To do so would require us to conclude that the
Constitution's enumeration of powers does not presuppose something not
enumerated . . ., and that there never will be a distinction between what
is truly national and what is truly local . . . . This we are unwilling to
do.
Lopez, 514 U.S. at 567-68.
The Court reiterated that same fundamental respect for state
sovereignty in Morrison, where a provision of the Violence Against Women
Act was declared unconstitutional for lack of a sufficient nexus to
interstate commerce:
Petitioners' reasoning, moreover, will not limit Congress to
regulating violence but may, as we suggested in Lopez, be applied equally
as well to family law and other areas of traditional state regulation since
the aggregate effect of marriage, divorce, and childrearing on the national
economy is undoubtedly significant. . . . Under our written Constitution,
however, the limitation of congressional authority is not solely a matter
of legislative grace.
Morrison, 529 U.S. at 615-16. 'The Constitution requires a distinction
between what is truly national and what is truly local.' Id. at 617-18.
Here, Lakewood argues that Congress has the power under the Commerce
Clause to regulate 'Federal-aid road systems, which undoubtedly are
channels and instrumentalities of interstate commerce, as well as road
systems within this state that substantially affect interstate commerce.'
Lakewood's Opening Br. at 16. For support, the City cites 23 U.S.C. sec.
101(b):
It is hereby declared to be in the national interest to accelerate the
construction of the Federal-aid highway systems, including The Dwight D.
Eisenhower System of Interstate and Defense Highways, since many of such
highways, or portions thereof, are in fact inadequate to meet the needs of
local and interstate commerce, for the national and civil defense.
. . . .
It is further declared that since the Interstate System is now in the
final phase of completion it shall be the national policy that increased
emphasis be placed on the construction and reconstruction of the other
Federal-aid systems in accordance with the first paragraph of this
subsection {quoted above}, in order to bring all of the Federal-aid systems
up to standards and to increase the safety of these systems to the maximum
extent.
23 U.S.C. sec. 101(b). Certainly, a sufficient nexus exists between
interstate commerce and the Federal-aid highway system to justify the
'regulatory scheme when considered as a whole.' Hodel, 452 U.S. at 329
n.17.
However, under Hodel, we must also determine whether the 'challenged
provisions are an integral part of the regulatory program.' Id. As
discussed above, sec. 409 in its pre-1995 form was evidently designed to
promote administrative candor in the application for, and implementation
of, federal safety enhancement funds, Coniker, 695 N.Y.S.2d at 495;
Robertson, 954 F.2d at 1435, and to prevent federal mandates 'from
providing an additional, virtually no-work tool, for direct use in private
litigation.' Light, 560 N.Y.S.2d at 965 (emphasis added). It is therefore
entirely reasonable that the privilege should cover 'reports,' 'surveys,'
'schedules,' 'lists' and 'data' that would not exist but-for 23 U.S.C.
sec.sec. 130, 144, and 152. See Yarnell, 890 P.2d. at 614. However, we fail
to see how those vital federal purposes are reasonably served by also
barring the discovery and admissibility in state court of routinely
prepared state and local traffic and accident materials and data that would
exist even had a federal safety enhancement program never been created,
such as collision photographs, traffic counts, citizen complaint letters,
and 'raw data' relating to the history of a local traffic intersection.
Such a broad privilege lacks the requisite nexus to sec. 409's raison
d'etre and cannot reasonably be characterized as an 'integral part' of the
Federal-aid highway system's regulation. Hodel, 452 U.S. at 328 n.17.
(3) Necessary and Proper Clause: Lastly, petitioners suggest that the
1995 amendment to sec. 409 was duly authorized by the Necessary and Proper
Clause, which gives Congress the authority to 'make all laws which shall be
necessary and proper for carrying into execution the foregoing powers.'
Const. art. I, sec. 8, cl. 18. In his concurrence in Heart of Atlanta
Motel, Inc., 379 U.S. 241, Justice Black explained that
it has long been held that the Necessary and Proper Clause, Art. I, sec. 8,
cl. 18, adds to the commerce power of Congress the power to regulate local
instrumentalities operating within a single State if their activities
burden the flow of commerce among the States.
379 U.S. at 271.
Pierce County claims that Congress had the power to amend sec. 409 as
it did in 1995, 'because, in order to encourage states to identify roads in
need of Hazard Elimination funds, it deemed it necessary to protect raw
data collected or compiled in making that evaluation from being used
against municipalities in highway accident litigation.' Pierce County's
Suppl. Br. (Guillen) at 12. But while the federal government enjoys
authority to require state courts to enforce a federal privilege protecting
materials that would not have been created but-for federal mandates such as
those in sec.sec. 130, 144, and 152, we conclude that it was neither
'necessary' nor 'proper' for Congress in 1995 to extend that privilege to
traffic and accident materials and raw data created and collected for state
and local purposes, simply because they are also collected and used for
federal purposes.39
Unconstitutional Violation of State Sovereignty: While Congress was
authorized under its enumerated powers to enact 23 U.S.C. sec. 409 in its
pre-1995 form, we find that its 1995 amendment of that statute cannot be
characterized as a valid exercise of any power constitutionally delegated
to the federal government. Absent a valid and compelling federal interest,
which petitioners have not identified here, Congress fundamentally lacks
authority to intrude upon state sovereignty by barring state and local
courts from admitting into evidence or allowing pretrial discovery of
routinely created traffic and accident related materials and 'raw data'
created and held by state and local governments and essential to the proper
adjudication of claims brought under state and local law, simply because
such collections also serve federal purposes. See Tardy, 659 N.E.2d at 820;
Kitts, 152 F.R.D. at 81. As most state courts recognized shortly after
Congress enacted sec. 409 in 1987, applying the sec. 409 privilege to any
and all materials and 'raw data' being collected by state and local
agencies 'for the purpose of identifying . . . potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to
sec.sec. 130, 144, and 152' would have the unacceptable effect of
'sacrific{ing} the state tort scheme on the altar of the federal statutory
scheme.' Yarnell, 890 P.2d at 613. We conclude that Congress' 1995
amendment to sec. 409 was unconstitutional and is thus unenforceable. See
Morrison, 529 U.S. at 607-08.
We therefore hold that the federal privilege created by sec. 409 lawfully
applies only to 'reports,' 'surveys,' 'schedules,' 'lists' and 'data' that
are originally 'compiled'--i.e., created, composed, recorded--for the
specific purpose of
identifying, evaluating, or planning the safety enhancement of potential
accident sites, hazardous roadway conditions, or railway-highway crossings,
pursuant to sections 130, 144, and 152 of this title, or for the purpose of
developing any highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds.
23 U.S.C. sec. 409; see Yarnell, 890 P.2d at 614. In other words, the
privilege only covers:
(1) surveys to identify hazardous railroad crossings and improve them (sec.
130); (2) applications for federal assistance in replacing or
rehabilitating highway bridges (sec. 144); (3) studies assigning priorities
and schedules of projects for highway improvement (sec. 152); and, (4)
other compilations made for developing highway safety construction projects
which would utilize Federal-aid funds (sec. 409).
Wiedeman, 627 So. 2d at 173.
If this state court has misconstrued the United States Constitution's
limitations upon the federal government's power to intrude upon the
exercise of state sovereignty in so fundamental an area of law as the
determination by state and local courts of the discoverability and
admissibility of state and local materials and data relating to traffic and
accidents on state and local roads, we are confident that the United States
Supreme Court will so instruct, as is its constitutional role under our
federalist system of government. As James Madison explained shortly prior
to the United States Constitution's ratification:
It is true that in controversies relating to the boundary between the two
jurisdictions {i.e., state and federal}, the tribunal which is ultimately
to decide, is to be established under the general {i.e., federal}
Government. But this does not change the principle of the case. The
decision is to be impartially made, according to the rules of the
Constitution; and all the usual and most effectual precautions are taken to
secure this impartiality.
The Federalist, No. 39 (James Madison), at 256 (Jacob E. Cooke ed. 1961).
IV
Lastly, we agree with the Court of Appeals that Guillen is entitled to
attorney fees under RCW 42.17.340(4), since the record suggests that he was
entitled to at least four of the five items to which he was denied access
in his PDA case. Guillen, 96 Wn. App. at 874.
CONCLUSION
While RCW 46.52.080 bars Guillen from securing public disclosure of
accident reports prepared by persons involved in prior accidents at the
same intersection, the statute does not prohibit their pretrial discovery.
Moreover, only publicly held materials and data that were originally
created for the identification, evaluation, planning, or development of
federally funded safety enhancement projects under 23 U.S.C. sec.sec. 130,
144, or 152 are lawfully privileged under 23 U.S.C. sec. 409, and thus also
exempt from public disclosure under RCW 42.17.310(j). Because the record
contains insufficient facts to apply this
standard to all of the disputed items, we vacate the lower courts' rulings
and remand for supplementation of the record and further proceedings not
inconsistent with this opinion.
WE CONCUR:
1 Thomas Ballard, the County Engineer, described these items in greater
detail as follows:
5. Two of the documents at issue are items 1 and 13. Item no. 13 is a
collection of the accident reports for the subject intersection from 1990
through 1996. Item no. 1 is a list of those same accidents showing the
location, time, date and nature of the accident. A study of the accidents
at the intersection was a crucial element in the County's review of the
operation and safety of the intersection. The County collected those
accident reports solely for that purpose. The decision to apply for Section
152 funds was based in large part on those accident reports. The nature of
the accidents, as identified in those reports, was a critical determining
factor in the County's design of the safety improvement for which
application was made. The WSDOT {Washington State Dep't of Transp.}
requires the County to fill out a prospectus to apply for Section 152
funds. . . . The prospectus specifically requires an accident history. If
the County did not collect and analyze the accident reports, it would not
be possible to plan and implement the safety improvements and it would be
impossible to apply for and receive Section 152 funds.
6. Items 10 and 11 are collision diagrams . . . used to consider
whether the design of the intersection was a causative factor in the
accidents and what, if any, design improvements could be made to increase
safety and lessen the possibility of future accidents. . . . The Section
152 application specifically requires an explanation and design of the
proposed improvement. Items 10 and 11 . . . were compiled and used
specifically for the purpose of determining the need for and designing the
signalization improvement that was the basis of the Section 152 application
and that was ultimately installed at the intersection.
CP at 54-55 (Third Decl. of Thomas G. Ballard, P.E., County Engineer).
2. Item 15 . . . is the draft of a memorandum from Fred Anderson,
then Public Works Director, to Barbara Gelman, then County Council member.
It consists of information used for the County's application for federal
funds for safety enhancement at the intersection of 168th Street East and B
Street East.
CP at 39 (Suppl. Decl. of Thomas G. Ballard, P.E., County Engineer).
2 Initially, Pierce County had also refused to disclose 'communication{s}
to the County regarding a perceived problem at the intersection,' but later
'determined that it was not necessary to assert the {section 409} privilege
for these particular documents, and they were provided to plaintiff.' CP at
40.
3 None of the materials at issue in Whitmer or in Guillen was actually
reviewed by the respective trial courts in camera or made part of the
appellate record under seal.
4 The Washington Association of Prosecuting Attorneys (WAPA) faults the
Court of Appeals' Guillen opinion for 'fail{ing} to address the issue of
the effect of RCW 46.52.080 on the county's obligation to produce accident
reports in response to discovery or public records requests.' Br. of Amicus
WAPA at 8. The complaint appears to have merit. The RCW 46.52.080 issue was
duly raised by Pierce County before the Court of Appeals in Guillen, see
Mot. for Discretionary Review (Dec. 7, 1998) at 2, and the Court of Appeals
expressly acknowledged the issue when it granted review. See Ruling
Granting Review and Consolidating Cases (Jan. 15, 1999) at 2. Yet, without
addressing RCW 46.52.080, the Court of Appeals ruled, simply, that '{t}he
trial court properly granted Guillen's request for disclosure of accident
reports pertaining to the subject intersection.' Guillen, 96 Wn. App. at
873. The RCW 46.52.080 issue is properly before us.
5 See also Cowles Publ'g Co. v. City of Spokane, 69 Wn. App. 678, 849 P.2d
1271, review denied, 122 Wn.2d 1013 (1993); Tacoma News, Inc. v. Tacoma-
Pierce County Health Dep't, 55 Wn. App. 515, 778 P.2d 1066 (1989), review
denied, 113 Wn.2d 1037 (1990).
6 The term 'agency' includes 'local agencies,' which in turn includes
'every county, city, town, municipal corporation, quasi-municipal
corporation, or special purpose district, or any office, department,
division, bureau, board, commission, or agency thereof . . . .' RCW
42.17.020(1). Petitioners Pierce County and the City of Lakewood are
therefore both subject to RCW 42.17.260(1). See Dawson v. Daly, 120 Wn.2d
782, 788, 845 P.2d 995 (1993).
7 See RCW 46.52.030 (1) ('Accident reports. (1) Unless a report is to be
made by a law enforcement officer under subsection (3) of this section, the
driver of any vehicle involved in an accident resulting in injury to or
death of any person or {serious} damage to the property of any one . . .
shall . . . make a written report of such accident . . . .'); RCW 46.52.040
(requiring vehicle's occupant to prepare the 'accident report' if operator
is physically incapacitated); cf. RCW 46.52.070 ('Police officer's report.
(1) Any police officer of the state of Washington or of any county, city,
town or other political subdivision, present at the scene of any accident
or in possession of any facts concerning any accident whether by way of
official investigation or otherwise shall make report thereof in the same
manner as required of the parties to such accident and as fully as the
facts in his possession concerning such accident will permit.'); RCW
46.52.030(3) ('Any law enforcement officer who investigates an accident for
which a report is required under subsection (1) of this section shall
submit an investigator's report as required by RCW 46.52.070.').
8 We note, however, that RCW 46.52.060 mandates that the 'number of
accidents' at each location, along with their 'frequency and circumstances
thereof,' be 'publish{ed}' on a monthly and annual basis. See RCW 46.52.060
('It shall be the duty of the chief of the Washington state patrol to file,
tabulate, and analyze all accident reports and to publish annually,
immediately following the close of each fiscal year, and monthly during the
course of the year, statistical information based thereon showing the
number of accidents, the location, the frequency and circumstances thereof
and other statistical information which may prove of assistance in
determining the cause of vehicular accidents.'). RCW 42.17.251 mandates
that PDA provisions be 'liberally construed,' and the term 'publish' has
been defined as follows: 'To make public; to circulate; to make known to
people in general. To issue; to put into circulation. . . . An advising of
the public or making known of something to the public for a purpose.'
Black's Law Dictionary 1233 (6th ed. 1990). Thus, while only the public
entities identified in the second paragraph of RCW 46.52.060 would be
entitled to disclosure of the 'accident reports' themselves and any
'analysis or reports thereof,' RCW 46.52.060 would still entitle Guillen to
public disclosure of the following raw data: 'the number of accidents' at
the location in question, the 'frequency,' and the 'circumstances thereof.'
9 While Mebust recognized our holding in Folden v. Robinson, 58 Wn.2d 760,
364 P.2d 924 (1961), regarding inadmissibility, the court stressed the need
to narrowly circumscribe any privilege and the importance of maintaining
liberal discovery rules. Mebust, 8 Wn. App. at 361.
10 It was after citing this provision--and in this sense--that we remarked
in City of Seattle v. Gerry, 76 Wn.2d 689, 458 P.2d 548 (1969), 'The report
itself was not before the court, nor were any of its details . . . . That
being so, its privileged nature was in no way violated.' Id. at 693
(emphasis added). Our phrase 'privileged nature' referred only to
admissibility. Whether or not the report was subject to discovery was never
in question. See also Gooldy, 69 Wn.2d at 613-14.
11 Pub. L. 93-87, Title II, sec. 209(a) (Aug. 13, 1973), 87 Stat. 286. The
other two statutes referenced in sec. 409 relate to federal safety
improvements programs for rail crossings (sec. 130) and highway bridges
(sec. 144), not applicable here. Much of the sec. 409 case law, though,
relates to rail crossing data, collected pursuant to sec. 130 rather than
to sec. 152.
12 Pub. L. 100-17, Title I, sec. 132(a) (Apr. 2, 1987), 101 Stat. 170.
13 As originally enacted, sec. 409 made referenced materials only
inadmissible as evidence at trial. Light, 560 N.Y.S.2d at 963 (interpreting
pre-1991 version of sec. 409). In 1991, though, Congress amended sec. 409
so as to make them nondiscoverable as well.
14 See Rodenbeck v. Norfolk & W. Ry., 982 F. Supp. 620, 624 (N.D. Ind. 1997)
(noting that if a government 'knows that its candid efforts of persuasion'
to secure safety improvement funds 'may ultimately be used against it,
{that government} will be far less forthcoming in offering any 'data' by
which that discretion can be exercised, and indeed may choose not to offer
safety suggestions at all.').
15 See also Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L.
Ed. 2d 186 (1980):
Testimonial exclusionary rules and privileges contravene the
fundamental principle that ''the public . . . has a right to every man's
evidence.'' United States v. Bryan, 339 U.S. 323, 331{, 70 S. Ct. 724, 730,
94 L. Ed. 884} (1950). As such, {privileges} must be strictly construed and
accepted 'only to the very limited extent that permitting a refusal to
testify or excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means for
ascertaining truth.' Elkins v. United States, 364 U.S. 206, 234{, 80 S. Ct.
1437, 1454, 4 L. Ed. 2d 1669} (1960) (Frankfurter, J., dissenting).
16 Palacios v. La. & Delta R.R., 682 So. 2d 806 (La. Ct. App. 1996).
17 Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659 N.E.2d 817 (1995).
18 See also Miguez v. S. Pac. Transp. Co., 645 So. 2d 1184, 1189 (La. Ct.
App. 1994) (finding it 'unwise from a practical perspective' to construe
section 409 so broadly as 'to unilaterally place off limits evidence so
vital to the court's quest for the truth,' effectively 'provid{ing} a drop
rug under which a potentially liable party may conveniently conceal its
prior misconduct,' thereby 'deny{ing} legitimate accident victims the only
system of redress available to them.').
19 In 1961, Washington statutorily waived its absolute sovereign immunity:
'The state of Washington, whether acting in its governmental or proprietary
capacity, shall be liable for damages arising out of its tortious conduct
to the same extent as if it were a private person or corporation.' RCW
4.92.090. Citing Kelso v. City of Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964),
Whitmer argues that, '{a}s a matter of public policy, this attempt by these
municipalities to hide evidence of their misconduct would violate the
statutory waiver of sovereign immunity applicable to all governmental
entities within the State of Washington, and would place governmental
tortfeasors above the law and not answerable to our Supreme Court's Civil
Rules.' CP (Whitmer) at 40. While the privilege does not per se violate RCW
4.92.090, the statute does evidence a strong public policy of holding
governments accountable for their tortious conduct.
20 As the Yarnell court explained:
Thus when sec. 409 refers to 'surveys' and 'schedules,' it is referring
specifically to those surveys and schedules prepared pursuant to 23 U.S.C.
sec. 130(d). Similarly, 23 U.S.C. sec. 144(e) . . . requires the federal
government to inventory, classify, and prioritize highway bridges and
categorizes this as 'data.' (Emphasis added.) And, 23 U.S.C. sec. 152
(hazardous roads), requires the states to 'survey' roads, implement a
'schedule' of projects for improvement, and submit a 'report' to the
federal government on progress being made to implement highway safety
improvement projects. 23 U.S.C. sec. 152(a), (g) (emphasis added).
Yarnell, 890 P.2d at 614.
21 Federal courts during this period tended to embrace a more expansive
understanding of section 409. In Robertson v. Union Pac. R.R., 954 F.2d
1433 (8th Cir. 1992), the Eighth Circuit held that sec. 409 'provides a
fairly broad exclusion.' Id. at 1435. The court deemed 'without merit' the
plaintiff's claim that materials were not privileged if 'not collected or
utilized solely for federal funding projects.' Id. at 1435 n.3 (emphasis
added). Rather, the court held that sec. 409 covered all materials compiled
''pursuant to Sections 130, 144, and 152'' even if 'available for other
uses and purposes.' Id. The Eighth Circuit reiterated its broad
construction of sec. 409 in Lusby v. Union Pac. R.R., 4 F.3d 639 (8th Cir.
1993), where it reversed a trial court that had allowed testimony by an
expert who relied on state-held materials such as accident reports,
explaining that 'state materials do not fall outside the scope of sec. 409
merely because they are not compiled solely for federal reporting purposes
and are available for other uses.' Id. at 641 (emphasis added). The Lusby
court held that as long as one of the reasons for compiling accident
reports or other data was for 'federal reporting purposes,' they were
privileged under sec. 409. See also Taylor v. St. Louis S.W. Ry., 746 F.
Supp. 50, 53-54 (D. Kan. 1990); Harrison v. Burlington N. R.R., 965 F.2d
155 (7th Cir. 1992).
22 The respondents also cite Department of Transportation v. Superior Court
(Tate), 47 Cal. App. 4th 852, 857, 55 Cal. Rptr. 2d 2 (1996), where the
court declined to give sec. 409 the 'broad construction' advanced by the
defendants in that case, despite Congress' just-enacted 1995 amendment. The
court based its ruling on a factual finding: '{W}hatever its effect,
{Congress' 1995 amendment} did not eliminate the express requirement that
the information at issue have been compiled or collected pursuant to
section 152, a requirement that {the state} has failed to establish in this
case.' Id. at 855 n.2 (emphasis omitted). Here, by contrast, the sworn
declarations in the record strongly suggest that one of the reasons the
petitioner 'compiled or collected' the disputed items and data was pursuant
to sec. 152.
23 See, e.g., Mackie v. Grand Trunk W. R.R., 215 Mich. App. 20, 23-26, 544
N.W.2d 709 (1996); Rodenbeck v. Norfolk & W. Ry., 982 F. Supp. at 621-25;
Reichert v. Dep't of Transp. & Dev., 694 So. 2d 193, 198 (La. 1997); Fry v.
S. Pac. Transp. Co., 715 So. 2d 632, 637 (La. Ct. App. 1998); Sevario v.
State ex rel. Dep't of Transp. & Dev., 752 So. 2d 221, 227-31 (La. Ct. App.
1999), review denied, 759 So. 2d 760 (La. 2000); Long v. Dep't. of Transp.
& Dev., 743 So. 2d 743 (La. Ct. App.), review denied, 751 So. 2d 885 (La.
1999), cert. denied, 529 U.S. 1110 (2000).
24 See 23 U.S.C. sec. 152(c) ('Funds authorized to carry out this section
shall be available for expenditure on--(1) any public road.'); 23 U.S.C.
sec. 101(27) ('The term 'public road' means any road or street under the
jurisdiction of and maintained by a public authority and open to public
travel.').
25 See also Stevedoring Servs. v. Eggert, 129 Wn.2d 17, 23, 914 P.2d 737
(1996); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 51 L.
Ed. 2d 604 (1977) ('Where, as here, the field which Congress is said to
have pre-empted has been traditionally occupied by the States, see, e.g.,
U.S. Const., art. I, sec. 10; Patapsco Guano Co. v. North Carolina, 171
U.S. 345, 358{, 18 S. Ct. 862, 867, 43 L. Ed. 191} (1898), 'we start with
the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230{,
67 S. Ct. 1146, 1152, 91 L. Ed. 1447} (1947).').
26 The petitioners cite several sec. 409 cases that find express preemption
controlling under the Supremacy Clause, but only after implicitly or
explicitly finding sec. 409 constitutional. See, e.g., Claspill v. Mo. Pac.
R.R., 793 S.W.2d 139, 140-41 (Mo.) (en banc), cert. denied, 498 U.S. 984
(1990); Sawyer v. Ill. Cent. Gulf R.R., 606 So. 2d 1069, 1073-74 (Miss.
1992) (resting on Supremacy Clause to reject plaintiff's argument that 'the
federal government has no authority to tell us what rules of evidence to
enforce in the courts of this state'); City of Atlanta v. Watson, 267 Ga.
185, 475 S.E.2d 896, 903-04 (1996) (holding that 'when a statute that has
evidentiary implications is part of a larger federal statutory scheme, the
Supremacy Clause demands that states adhere to the statute. To hold
otherwise defeats a significant purpose of the federal act and cannot be
justified in light of the Supremacy Clause.') (citing pre-1995 cases such
as Yarnell, Sawyer, Wiedeman, and Claspill); Long v. Dep't of Transp. &
Dev., 743 So. 2d 743 (citing U.S. Const. art. VI, cl. 2; Jones v. Rath
Packing Co., 430 U.S. at 525). Some of these are pre-1995 cases, and it is
uncontested that Congress had authority to enact sec. 409 in its pre-1995
form, insofar as the privilege was understood to apply only to materials
and data created exclusively to comply with the federal government's
mandates.
27 See, e.g., Lynn A. Baker, The Revival of States' Rights: A Progress
Report and a Proposal, 22 Harv. J.L. & Pub. Pol'y 95 (1998).
28 See also Gregory, 501 U.S. at 458 (noting that enforcement of a 'balance
of power between the States and the Federal Government will reduce the risk
of tyranny and abuse from either front,' just as the balance of power among
the branches of the federal government does).
29 See, e.g., New York v. United States, 505 U.S. 144 (holding Congress
lacked the power to enact 'take title' provision of Low-Level Radioactive
Waste Policy Act); United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,
131 L. Ed. 2d 626 (1995) (holding that Gun-Free School Zones Act exceeded
Congress' power); Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114,
134 L. Ed. 2d 252 (1996) (holding that Congress lacked authority under
Indian commerce clause to abrogate states' Eleventh Amendment immunity);
Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914
(1997) (holding that Congress could not require state officers to conduct
background checks on prospective handgun purchasers under Brady Handgun
Violence Prevention Act); City of Boerne v. Flores, 521 U.S. 507, 117 S.
Ct. 2157, 138 L. Ed. 2d 624 (1997) (holding that Freedom Restoration Act
exceeded Congress' Fourteenth Amendment enforcement powers); Alden v.
Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (holding
Congress could not subject state to suit in state court under Fair Labor
Standards Act without its consent); United States v. Morrison, 529 U.S.
598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (invalidating civil remedy
provision of Violence Against Women Act as exceeding commerce power).
30 Lakewood's Opening Br. at 21; Pierce County's Opening Br. (Whitmer) at 25-
26 (passim); Lakewood's Reply Br. at 13-14; Pierce County's Suppl. Br. re:
Federal Preemption (Guillen) at 4-10; Pierce County's Reply Br. (Guillen)
at 3-5.
31 Lakewood's Opening Br. at 15-21; Lakewood's Reply Br. at 5-13; Pierce
County's Suppl. Br. re: Federal Preemption (Guillen) at 10-11; Pierce
County's Reply Br. (Guillen) at 5-6.
32 Pierce County's Suppl. Br. re: Federal Preemption (Guillen) at 11-12;
Pierce County's Reply Br. re: Federal Preemption (Guillen) at 6-7.
33 'We have repeatedly held that the Federal Government may impose
appropriate conditions on the use of federal property or privileges and may
require that state instrumentalities comply with conditions that are
reasonably related to the federal interest in particular national projects
or programs.' Massachusetts v. United States, 435 U.S. 444, 461, 98 S. Ct.
1153, 55 L. Ed. 2d 403 (1978) (emphasis added).
34 In her dissent in Dole, Justice O'Connor agreed 'that there are four
separate types of limitations on the spending power,' but argued that the
majority's 'application of the requirement that the condition imposed be
reasonably related to the purpose for which the funds are expended is
cursory and unconvincing.' 483 U.S. at 213 (O'Connor, J., dissenting).
When Congress appropriates money to build a highway, it is entitled to
insist that the highway be a safe one. But it is not entitled to insist as
a condition of the use of highway funds that the State impose or change
regulations in other areas of the State's social and economic life because
of an attenuated or tangential relationship to highway use or safety.
Indeed, if the rule were otherwise, the Congress could effectively regulate
almost any area of a State's social, political, or economic life on the
theory that use of the interstate transportation system is somehow
enhanced.
Id. at 215 (O'Connor, J., dissenting). She argued that Congress is only
authorized under the Spending Clause to ''specif{y} how the money should be
spent.'' Id. at 216 (O'Connor, J., dissenting) (quoting Br. for Nat'l Conf.
Amici Curiae). ''A requirement that is not such a specification is not a
condition, but a regulation, which is valid only if it falls within one of
Congress' delegated regulatory powers.'' Id. Indeed, she warns,
If the spending power is to be limited only by Congress' notion of the
general welfare, the reality, given the vast financial resources of the
Federal Government, is that the Spending Clause gives 'power to the
Congress to tear down the barriers, to invade the states' jurisdiction, and
to become a parliament of the whole people, subject to no restrictions save
such as are self imposed.' United States v. Butler {297 U.S. at 78}. This,
of course, as Butler held, was not the Framers' plan and it is not the
meaning of the Spending Clause.
Id. at 217 (O'Connor, J., dissenting).
35 While 23 U.S.C. sec. 145 'protect{s} state sovereignty,' see 23 U.S.C.
sec. 145(a) ('The authorization of the appropriation of Federal funds or
their availability for expenditure under this chapter shall in no way
infringe on the sovereign rights of the States to determine which projects
shall be federally financed.'), the federal mandates at issue here do not
appear to be similarly discretionary. See 23 U.S.C. sec. 152(a)(1) ('Each
State shall conduct and systematically maintain {a survey of all public
roads, etc.} . . . .'); 23 U.S.C. sec. 409 ('Notwithstanding any other
provision of law . . . , {identified materials} shall not be subject to
discovery or admitted into evidence in a Federal or State court proceeding
or considered for other purposes.').
36 Notably, the following year in Patterson v. New York, 432 U.S. 197, 97 S.
Ct. 2319, 53 L. Ed. 2d 281 (1977), the Court indicated that it thought that
internal state court procedures such as the determination of evidentiary
rules deserved deference under the federalist framework as an area
traditionally regulated by states:
{W}e should not lightly construe the Constitution so as to intrude upon the
administration of justice by the individual States. Among other things, it
is normally 'within the power of the State to regulate procedures under
which its laws are carried out, including the burden of producing evidence
and the burden of persuasion.'
Id. at 201 (quoting Speiser v. Randall, 357 U.S. 513, 523, 78 S. Ct. 1332,
2 L. Ed. 2d 1460 (1958); Leland v. Oregon, 343 U.S. 790, 798, 72 S. Ct.
1002, 96 L. Ed. 1302 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54
S. Ct. 330, 78 L. Ed. 674 (1934)).
37 Madison argued that fears of 'ambitious encroachments of the Federal
Government, on the authority of the State governments' were unjustified,
since elected members of state and federal governments represented the
people, and states would band together to combat any such encroachments
just as Americans did to combat British tyranny in 1776. The Federalist
Papers, No. 46, at 320.
Plans of resistance would be concerted. One spirit would animate and
conduct the whole. The same combination in short would result from an
apprehension of the federal, as was produced by the dread of a foreign
yoke; and unless the projected innovations should be voluntarily renounced,
the same appeal to a trial of force would be made in the one case, as was
made in the other. But what degree of madness could ever drive the Federal
Government to such an extremity?
Id.
38 In 1990, the Missouri Supreme Court relied on Garcia to reject claims
that 23 U.S.C. sec. 409 constituted an unconstitutional federal regulation
of internal state court procedures. Claspill v. Mo. Pac. R.R., 793 S.W.2d
139. The court held that, under Garcia, 'states must depend on the national
political process for their tenth amendment protections.' Id. at 141. Since
Missouri had not been 'deprived of any right to participate in the national
political process,' id., Claspill's federalism challenge failed.
39 See also Printz, 521 U.S. at 923-24 (holding that the Necessary and
Proper Clause cannot be used to justify a federal law that 'violates the
principle of state sovereignty').