The Little Things Matter: Public Records Suit Dismissed for Failure to Properly Serve County Auditor
In an unpublished opinion, the Washington Court of Appeals affirmed the dismissal of a public records suit due to the requester’s failure to properly serve the Pierce County Auditor. The requester, Larry Day, requested records from the Pierce County Prosecuting Attorney’s office relating to its prosecution of Day. The Prosecuting Attorney’s Office withheld a number of documents as attorney work product. Day subsequently filed a complaint under the Public Records Act naming the Prosecuting Attorney’s Office as the defendant. Day also served a copy of the complaint on the Prosecuting Attorney’s Office. Day did not serve any other public official or department. The Prosecuting Attorney’s Office appeared and filed a Motion for Summary Judgment arguing that Day’s service was improper. The trial court agreed and dismissed Day’s suit.
Counties can be sued under Washington law, but to properly serve a county, the plaintiff must serve the County Auditor or the Deputy Auditor. RCW 36.01.010; RCW 4.28.080(1). In contrast, a county department can only be sued if the law creating the department permits such a suit. Roth v. Drainage Improvement Dist. No. 5, 64 Wn. 2d 586, 588 (1964). Pierce County never designated the Prosecuting Attorney’s Office as an entity capable of being sued. Thus, to effectively serve his suit, Day was required to serve the Pierce County Auditor or the Auditor’s Deputy. Day did not and that mistake proved fatal to his suit.
Moreover, because Day failed to re-file and properly serve the Pierce County Auditor after his original suit was dismissed, the Court of Appeals held that the one year statute of limitations under the Public Records Act had run.