Eubanks v. Brown , 180 Wash. 2d 590 ( 2014 )

Fairhurst, J.

¶1 Petitioner David Brown seeks review of a Court of Appeals published opinion holding that venue for this sexual harassment suit was proper in Clark County. Brown argues that RCW 4.12.020(2) requires that suits against public officers for acts done “in virtue of his or her office” proceed in the county where the acts occurred. In this case, Brown claims the suit brought against him must proceed in Klickitat County. We affirm venue is proper in Clark County because we hold that the acts alleged in this complaint were not “in virtue of” Brown’s public office under RCW 4.12.020(2).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶2 Respondents Robin Eubanks and Erin Gray allege Brown engaged in sexual harassment against them. From September 2007 to July 2010 Brown was a deputy prosecuting attorney in the Klickitat County Prosecuting Attorney’s Office (Prosecutor’s Office) where he supervised administrative assistants Eubanks and Gray.

¶3 The complaint alleges that Brown engaged in the following inappropriate actions toward Eubanks:

(1) [Slitting in their shared office with his pants unzipped and legs spread open upon his desk on a regular basis; (2) staring at Ms. Eubanks for unusually long periods of time while Ms. Eubanks was attempting to work; (3) licking his lips constantly while he was talking to Ms. Eubanks; (4) following her around the office; [and] (5) positioning himself so that Ms. Eubanks would need to rub against his body as she left their office; (6) closing the door on the office when they were in the small office space together; and (7) giving gifts to Ms. Eubanks, even though she made it clear she did not want to accept them.

Clark County Clerk’s Papers (CCP) at 10. Further, the complaint alleges that Brown engaged in the following inappropriate actions toward Gray:

(1) [Sharing at Ms. Gray’s breasts during the conversations with her several times daily; (2) staring at Ms. Gray for unusually long periods of time while Ms. Gray was trying to work at her desk in her office; (3) licking his lips constantly while he was talking to her, as well as following her around the office; (4) positioning himself so that Ms. Gray, who was pregnant at the time, would need to rub against [his] body as she left the front door to the office; (5) hanging around outside Ms. Gray’s office for unusually long periods of time doing nothing other than breathing heavily.

CCP at 12.

¶4 Eubanks and Gray (hereinafter Eubanks) filed this suit against Brown in his individual capacity, the Prosecutor’s Office, and Klickitat County in Benton County Superior Court. Eubanks mistakenly believed that RCW 36.01-.050, which governs venue for suits against a county, allowed for venue in any neighboring county, rather than the two nearest judicial districts. Upon realizing it was only the two nearest judicial districts, Eubanks moved to transfer venue to an appropriate county, Clark County Superior Court. Brown responded, claiming that under RCW 4.12-.020(2), only Klickitat County Superior Court was an appropriate venue for the claims against him. However, his response did not request a change of venue to Klickitat County Superior Court or ask the Benton County Superior Court to deny the transfer of venue to Clark County Superior Court. Benton County Superior Court granted the motion to transfer venue to Clark County Superior Court.

¶5 After the change of venue to Clark County Superior Court, Brown moved for a dismissal or a change of venue to Klickitat County Superior Court based on RCW 4.12.025(1) and RCW 4.12.020(2). He argued that venue was proper in Klickitat County Superior Court because he resided there and, alternatively, because the alleged tortious acts occurred in virtue of his public office and took place there. Clark County Superior Court denied Brown’s motion to dismiss or motion to change venue on both grounds. The Court of Appeals affirmed. Brown moved for discretionary review, which we granted. Eubanks v. Brown, 176 Wn.2d 1026, 301 P.3d 1047 (2013).

II. ISSUE PRESENTED

¶6 Do Eubanks’ claims against Brown involve acts done in virtue of his public office under RCW 4.12.020(2), thus requiring venue in Klickitat County?

III. ANALYSIS

A. Venue depends on whether RCW 4.12.020(2) applies to this case

¶7 The initial choice of venue belongs to the plaintiff. Hatley v. Saberhagen Holdings, Inc., 118 Wn. App. 485, 488-89, 76 P.3d 255 (2003) (noting this concept is a “well-established principle”). If initial venue is not proper as to the defendant, the defendant may either waive their objection to the erroneous venue by failing to object or move to transfer the case to where venue is proper. See, e.g., Youker v. Douglas County, 162 Wn. App. 448, 459-60, 258 P.3d 60 (2011) . If the defendant objects, the case must be transferred to a court with proper venue. See, e.g., Roy v. City of Everett, 48 Wn. App. 369, 372, 738 P.2d 1090 (1987). Venue in Benton County Superior Court was not proper as to Brown, and he objected. After the case was transferred to Clark County Superior Court, Brown again objected and moved to change venue. Because Brown objected, the court must make the determination where venue is proper.

¶8 Proper venue is governed by statute in Washington. Parker v. Wyman, 176 Wn.2d 212, 222, 289 P.3d 628 (2012) . There are two venue statutes that might apply to this case, RCW 4.12.020(2) and RCW 36.01.050. RCW 4.12.020(2) applies to certain types of suits against public officials. It provides, in relevant part:

Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose:

(2) Against a public officer, or person specially appointed to execute his or her duties, for an act done by him or her in virtue of his or her office, or against a person who, by his or her command or in his or her aid, shall do anything touching the duties of such officer.

RCW 4.12.020. If this statute applies, venue is mandatory in the county where the cause arose.¹

¶9 The other statute involved, RCW 36.01.050, is applicable to all cases in which a county is a defendant. It authorizes proper venue over a county defendant in “the superior court of such county, or in the superior court of either of the two nearest judicial districts.” RCW 36.01-.050(1). If venue is not mandatory in the county where the cause arose based on RCW 4.12.020(2), then it is proper in the defendant county or either of the two nearest judicial districts.

¶10 Consequently, this court must first determine whether RCW 4.12.020(2) applies. If it does, venue must be in Klickitat County. To determine venue, the court assumes the allegations in the complaint are true. Greenius v. Am. Sur. Co. of N.Y., 92 Wash. 401, 403, 159 R 384 (1916) (look at claim of trespass in complaint to determine venue); Roy, 48 Wn. App at 370 (look at claims of negligence, failure to perform duties under the domestic violence act, denial of equal protection, denial of federal civil rights, and assault in the complaint to determine venue). The applicability of RCW 4.12.020(2) and venue for this action turn on the statutory interpretation of the phrase “an act done ... in virtue of his or her office.”

B. An act in virtue of his or her public office is an act exercising or failing to exercise the authority of the office

¶11 We must interpret the meaning of “in virtue of” in RCW 4.12.020(2). We review de novo questions of statutory meaning to discern and implement the legislature’s intent. Manary v. Anderson, 176 Wn.2d 342, 350-51, 292 P.3d 96 (2013); State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). We begin by looking at the “ ‘statute’s plain language and ordinary meaning.’ ” J.P., 149 Wn.2d at 450 (quoting Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)). Where the language of a statute is unambiguous, we “must give effect to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).

¶12 “If the legislature uses a term well known to the common law, it is presumed that the legislature intended it to mean what it was understood to mean at common law.” N.Y. Life Ins. Co. v. Jones, 86 Wn.2d 44, 47, 541 P.2d 989 (1975). RCW 4.12.020(2) has remained essentially unchanged since territorial days. See Laws of 1854, § 14, at 133.

¶13 The common law defines acts done virtute officii (in virtue of a public office) as acts a public official is authorized to perform as part of his or her position, even if improperly or wrongfully performed. See, e.g., Greenius, 92 Wash. at 403-04 (“That is to say, if his office gives him authority to act, he is acting in virtue of his office, although, in the performance of a specific duty, he improperly exercises his authority.”); Feller v. Gates, 40 Or. 543, 546, 67 P. 416 (1902) (“ ‘Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him.’ ” (quoting People ex rel. Kellogg v. Schuyler, 4 N.Y. 173, 187 (1850) (Pratt, J. dissenting))); Gerber v. Ackley, 37 Wis. 43, 44 (1875) (“It is an official act, a failure to perform an official duty, or performing it in an improper manner.”). This term was historically contrasted with acts done colore officii (under color of office), which were acts beyond the scope of authority given by one’s office. Greenius, 92 Wash. at 405; Haffner v. U.S. Fid. & Guar. Co., 35 Idaho 517, 520, 207 P. 716 (1922) (“[A]cts done ‘colore offici’ are those which are entirely outside or beyond the authority conferred by the office”), overruled in part by Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).²

114 This distinction between the two concepts in early common law is illustrated in Haffner, an Idaho case, in the context of a nearly identical venue statute. 35 Idaho at 520.³ Haffner sued the Power County sheriff under two causes of action: (1) false arrest and imprisonment and (2) conversion. Id. With regard to the false arrest, the court held that the sheriff acted in virtue of his public office because he had the authority as part of his office to make arrests and even his wrongful use of that official authority was done in virtue of his public office. Id. at 521. The sheriff’s motivations were irrelevant; all that mattered was whether his action was an authorized act. See id. With regard to the conversion claim, the sheriff took Haffner’s property without any writ or any process authorizing him to do so and thus this act was not done in virtue of his public office. Id. This was not “the improper exercise of an authority conferred upon him by law, but an arbitrary, wholly unauthorized act on his part.” Id. Since one cause of action was done in virtue of his public office, the venue statute applied to the whole case and venue was proper only where the cause of action arose.

¶15 While the distinction between and use of the terms has been abandoned, Washington courts have followed this early common law meaning of “an act done in virtue of a public office” when determining the proper venue under RCW 4.12.020(2). In State ex rel. McWhorter v. Superior Court, 112 Wash. 574, 574-78, 192 P. 903 (1920), we held that McWhorter had acted in virtue of his public office as an agent of the state humane bureau when he charged Charles D. Davis with animal cruelty in King County, and so the suit had to proceed in the county where the cause of action arose. In doing so, this court implicitly applied the common law definition of “in virtue of a public office” by agreeing that an agent of the state humane bureau is authorized to take legal action against animal cruelty as part of his job and even if he does so wrongly or with improper motivations, the act itself is authorized.

¶16 Many years later, the Court of Appeals applied this common law meaning of “an act done in virtue of a public office” in Roy. Roy alleged various theories of negligence related to a pattern of the police failing to protect her and her daughter from her daughter’s abusive boyfriend. 48 Wn. App. at 370. Applying RCW 4.12.020(2), the Court of Appeals held that the police officers had a right to venue in the county where the cause of action arose because it derived from acts done in virtue of a public office. Id. at 371-72. The police officers’ job authorized them to stop the boyfriend’s harassment of Roy and her daughter by arresting Roy. Roy’s claim that the officers failed to use their valid authority to protect her and her daughter involved acts done in virtue of their public office and so venue was proper where the acts occurred, Snohomish County.⁴

¶17 Recently, the court again recognized this definition in Youker, which involved a suit against a county and two of its police officers for alleged false arrest, false imprisonment, and malicious prosecution. 162 Wn. App. at 453. The Court of Appeals affirmed the trial court and held that RCW 4.12.020(2) required the suit against the officers to proceed in Douglas County, where the arrest that was the subject of the suit occurred. Id. at 458. By doing so, the Court of Appeals implicitly recognized that the officers had acted in virtue of their public office when they arrested and imprisoned Youker because they were acting within their authority as police officers.

¶18 From the clear definitional parameters of this precedent, we hold that an act done by a public officer in virtue of his or her public office is an act exercising or failing to exercise the authority of the office or performing the authority in an improper manner. The officer’s motivations are irrelevant; an officer may act in virtue of his or her public office in a negligent or intentional manner so long as he or she acts with the authority of the office. This definition encompasses suits alleging that an officer has exercised the powers of his or her office for proper or improper motives, as in Youker and Haffner, and suits where the officer fails to exercise the powers of his or her office, negligently or otherwise, as in Roy.

¶19 Under this definition, Brown’s acts did not occur in virtue of his public office. When considering whether an act is in virtue of one’s position, courts focus on the underlying claims in the complaint and whether, if all allegations comprising the claims in the complaint are true, that act would be beyond the authority granted to the public officer. McWhorter, 112 Wash, at 575 (claim of malicious prosecution was within the authority of a state humane bureau officer); Youker, 162 Wn. App. at 453 (claims of false arrest and false imprisonment were within the authority of the police deputies); Roy, 48 Wn. App at 370 (claims of negligence, failure to perform duties under the domestic violence act, denial of equal protection, denial of federal civil rights, and assault were within the authority of the police officers). Eubanks’ claims against Brown are for sexual harassment, negligent or intentional infliction of emotional distress, and negligence. As a deputy prosecuting attorney, Brown has the authority to take all actions to prosecute citizens who have broken the law. He does not have the authority to harass, inflict emotional distress on, or create a hostile working environment for the other people in his office.

¶20 Brown argues that because his actions occurred in the workplace, they were automatically done in virtue of his public office. This is not true. He frames this basic argument three ways: (1) because the actions occurred during his employment, they occurred in virtue of his public office; (2) because his actions were taken as part of his supervisory capacity, they were taken in virtue of his public office; and (3) acts that are within the course and scope of employment must also be in virtue of one’s public office.⁵ We reject this contention that acts occurring in a workplace are necessarily done in virtue of one’s public office.

¶21 Employment alone is not sufficient to make an act in virtue of a public office. Brown needed to have acted with authority granted to him from his position, not just his employment. The same is true for his supervisory role. A supervisory position does not make all of the supervisor’s acts automatically in virtue of his public office. Further, acts within the course and scope of employment are not all done in virtue of one’s public office. An officer acts in the course and scope of employment if he or she acts to serve the purposes of his or her employer — the public. Robel v. Roundup Corp., 148 Wn.2d 35, 53-54, 59 P.3d 611 (2002). An officer acts in virtue of his public office when acting with authority granted to him because of that position, regardless of underlying motivations. Greenius, 92 Wash. at 403-04.

¶22 Brown was a deputy prosecuting attorney. His public office gave him the authority to prosecute. His public office did not give him the authority to harass, inflict emotional distress on, or create a hostile work environment for his coworkers. This is not a case where a public officer used valid authority for an improper motive. This is a case where a public officer is trying to use his office to justify acts outside his designated authority. Such acts are not “in virtue of” his public office, and thus RCW 4.12.020(2) does not control venue in this case.

IV. CONCLUSION

¶23 We hold that because the alleged claims of sexual harassment, negligent or intentional infliction of emotional distress, and negligence were not done in virtue of his public office, RCW 4.12.020(2) does not entitle Brown to venue in Klickitat County. He does not renew before us his argument that venue is proper in Klickitat County by virtue of his residence. Nor has he at any point argued that venue is proper in Klickitat County because Eubanks’ injury occurred there. Consequently, we affirm the trial court and the Court of Appeals. Venue is proper in Clark County Superior Court, and the action should proceed there.

C. Johnson, Owens, Stephens, Wiggins, González, and Gordon McCloud, JJ., and J.M. Johnson, J. Pro Tem., concur.

1 The use of the word “shall” in RCW 4.12.020(2) emphasizes the mandatory nature of this provision. Ballasiotes v. Gardner, 97 Wn.2d 191, 195, 642 P.2d 397 (1982) (citing Wash. State Liquor Control Bd. v. Wash. State Pers. Bd., 88 Wn.2d 368, 377, 561 P.2d 195 (1977)).

2 Many of the cases discussing an act done in virtue of a public office discuss the issue in the context of insurer liability for the actions of law enforcement officers. See, e.g., Greenius, 92 Wash. 401. Insurers were liable for acts done in virtue of a public office but not for acts done under color of office. Id. at 403-04. The later decisions, like our decision in Greenius and the Idaho Supreme Court’s opinion in Helgeson, abolished the distinction for purposes of insurer liability on the theory that if an officer did wrong, the fact that his or her office authorized the act should not preclude a plaintiff from recovering from the officer’s insurer. Id. at 407-08; Helgeson, 34 P.2d at 965-66. As Justice Givens observed in his concurrence in Helgeson, this policy decision should have no effect on the meaning of an act done in virtue of a public office in the context of venue. 34 P.2d at 966 (Givens, J. concurring).

3 Helgeson overruled Haffner with regard to when an insurer of police conduct can be held liable. Id. at 965-66. After Helgeson, surety liability was no longer dependent on what authority the officer had or purported to have. Id. Instead, surety liability was thereafter dependent on whether an officer would have taken the action he took if he had not been an officer. Id. While this change affected the rule from Haffner, it did not overrule what was said about the terminology or how the acts would have been characterized in Haffner, which is what we examine above. Id. at 966 (“Therefore, in so far as [the rules in Haffner] are contrary to the rule herein announced, they are hereby expressly overruled.” (emphasis added)).

4 The court went on to point out that there might still be policy arguments regarding why venue should be changed in the interest of justice. However, those arguments must be postponed and made in front of the court that is determined to have proper venue; they are inapplicable and should not be considered when determining where statutorily dictated venue resides. Roy v. City of Everett, 118 Wn.2d 352, 372, 823 P.2d 1084 (1992). Thus, the many policy arguments made by Eubanks are irrelevant at this juncture and should wait to be presented to the court that is determined to have the proper venue.

5 Brown argues a venue determination under RCW 4.12.020(2) could preclude a determination regarding whether the official acted in the course and scope of employment. Issue preclusion requires (1) identical issues, (2) a final judgment on the merits, (3) that the party estopped must be either a party in the prior proceeding or in privity with a party, and (4) that applying the doctrine will not work an injustice on the party to whom the preclusion will be applied. Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 297 P.3d 677 (2013). An act occurring in virtue of a public office is related to but different from an act occurring in the course and scope of employment. Because the different types of acts do not involve identical issues, a venue determination under RCW 4.12.020(2) would not preclude argument about the appropriateness of vicarious liability.