Judge Nicole Gaines Phelps dismissed the August 2019 lawsuit that was brought forward by former Auburn Councilmember Largo Wales. Wales filed the lawsuit against the City of Auburn, Mayor Nancy Backus, Nancy Backus, and her marital community, former City of Auburn Human Resource Director Rob Roscoe and his marital community, and the Committee to Elect Nancy Backus. The lawsuit stemmed from the 2017 mayoral election.
Largo Wales’ Complaint
The complaint requested damages for a violation of Wales’ freedom of speech and right to privacy under the Washington State constitution. Wales sought special damages for lost potential earnings, general damages for pain, suffering and mental anguish, statutory costs and attorney fees, and any additional or further relief the court found appropriate and just.
According to the complaint, Wales’ freedom of speech was violated by the City of Auburn and Roscoe in a September 2016 meeting. The complaint further asserts that Wales’ right to privacy was breached when information from the 2016 meeting with Roscoe allegedly “was illegitimately released and ultimately intentionally misused,” in the 2017 mayoral election.
Wales amended her complaint twice before a response from any party was filed.
Motion to Dismiss
The City of Auburn filed a motion to dismiss, based on Superior Court Civil Rules CR 12(b)(6) – “failure to state a claim upon which relief can be granted.”
The City of Auburn’s motion to dismiss laid out that “when ruling on a CR 12(b)(6) motion, the trial court presumes all facts alleged in the plaintiff’s complaint are true. Tenore v. AT & T Wireless Servs.,… “If a plaintiff’s claim remains legally insufficient even under his or her proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate.”
The City of Auburn’s motion to dismiss asserted that “the Washington State Constitution does not provide a private cause of action, and therefore [the] plaintiff’s “Free Speech” and “Privacy” claims based thereon must be dismissed with prejudice as a matter of law.”
The City of Auburn defended Mayor Backus, as well as Roscoe as a former employee. Backus also had a private attorney, defending her as an individual. Backus’ attorney filed a motion to join the City of Auburn’s defense, agreeing with their arguments. In addition to the arguments made by the City of Auburn attorney, Backus’ attorney argued that the complaints claims couldn’t apply “against private individuals like the Backus defendants.”
All parties filed responses and replies before Friday’s hearing. At the hearing, each attorney had ten minutes to argue their point for or against dismissal.
Friday, January 3rd Hearing
Defendant Oral Arguments
In her initial arguments, Jayne Freeman, attorney for the City of Auburn, Mayor Backus, and Roscoe, reiterated the legal arguments initially outlined in the filed motion to dismiss. Freeman raised that Wales’ amended complaints narrow her claims. “Then, in her response to the motion to dismiss the plaintiff suggests she is pursuing a different type of claim,” Freeman continued her argument. “She admits she is pursuing a claim against the defendants only based on the Washington State Constitution. [plaintiff] continues to cite two provisions of the Washington State Constitution.”
As he did in court filings, Backus’ attorney Scott Wakefield joined Freeman’s oral arguments. He additionally reiterated that in her individual capacity the complaint did not apply to Backus as she was acting as an agent of a state institution. Wakefield’s oral argument was that “the common law of Washington is clear that they only apply to state actors. Because those provisions of the Washington State Constitution are to protect individuals from the power of the state.”
Plaintiff Oral Arguments
Torres began his oral argument providing historical context for the complaint. Voluntary discovery was requested ahead of the lawsuit being filed, according to Torres’ argument. This would help determine who exactly was involved and should be included in the lawsuit. According to Torres, they were denied. This, and facing the state statute of limitations, the decision was made to file the lawsuit.
“Clearly, the evidence is there to see; the question is who are the active tortfeasors and under what exact theory. [This] is exactly what the defense is saying,” asserted Torres. “Until we can proceed with discovery, the final lynchpin as to who released the information – giving rise to slander, defamation and libel outrage – is being strategically hidden from the factfinders, including this court.”
When Torres raised the point of defamation, Judge Phelps interrupted his arguments. Having read each of the filed complaints, Judge Phelps was uncertain if she had missed where slander, libel, and defamation had been introduced. “You didn’t miss it, your honor,” confirmed Torres, “our point is until we can depose people and find out what was said and why it was released to the public, all we have is the physical evidence where on Nancy Backus’ campaign material she states ‘the City of Auburn chastised Largo Wales.'”
Torres went on to concede that “I know that political speech is free. Even lying is free. But we believe that this information(sic), we connected the dots.”
Torres argued that different causes of action depend on the actions of the actors. To determine the actions of the actors, they need to determine those actions through discovery.
At the end of Torres’ arguments Judge Phelps asked: “do you acknowledge as the pleadings stand right now, other than if the Court were to confer, they do not establish a cause of action by simply pleading a violation of Washington Constitution Article 1, section five and seven?”
Torres responded that “as narrowly stated, I agree with that.”
Freeman offered a brief rebuttal to Torres’ argument. One of her points was that the argument that discovery was required before deciding which claims to include in a complaint “doesn’t really make sense, particularly in this context.” Wakefield had no rebuttal.
Judge Phelps’ Ruling
After hearing all arguments, and Freeman’s brief rebuttal, Judge Phelps made her ruling. “The court sees this as sort of a two-fold analysis,” stated Judge Phelps. “The first analysis the court is engaging is what was requested, a 12(b)(6) analysis. The standard is the court must look at the claims as though they are true. And if they are true, are they legally sufficient, under [the] law? ”
“Here Counsel for the plaintiff concedes that, as pled, to the extent that in the law it is clear,” continued Judge Phelps. “When you [reference] constitutional arguments…meaning the violation of speech and right to privacy, under Washington Article 1, sections five and seven, that there are no forms of action as a matter of law. So, that’s problematic.”
Judge Phelps granted the defendants’ motion to dismiss.
Reactions to the Ruling
Freeman was pleased with the outcome of the hearing. She felt the Judge “made the right decision based on the law; it’s very clear there’s not always a claim.”
Backus shared she was “happy this is all over and that there was no merit to the case.” She plans to continue working for the city, “that’s why I was elected.”
During his arguments, Torres raised the fact that the Committee to Elect Nancy Backus had not responded to the complaint. Backus confirmed that the motion to dismiss included the suit against the committee, closing the entire lawsuit.
Wales had no comment at the time of the hearing.