Benjamin v. Washington State Bar Ass'n

Page 742

138 Wn.2d 506

980 P.2d 742, 15 IER Cases 807

Dr. G. Andrew H. BENJAMIN, Appellant, v. WASHINGTON STATE BAR ASSOCIATION, an Agency of the State of

Washington, Respondent.

Dr. G. Andrew H. Benjamin, Appellant, v. Dennis P. Harwick, in his individual capacity; and Rebecca

Harwick, his wife, Respondents.

No. 66352-1.

Supreme Court of Washington En Banc.

Argued Oct. 21, 1998.

Decided July 22, 1999.

Keating, Bucklin & McCormack, Stewart A. Estes, Seattle, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Jeffrey L. Needle, Seattle, Amicus Curiae on behalf of American Civil Liberties Union.

Abraham A. Arditi, Seattle, for Appellant.

Carolyn Cairns, Laura Buckland, Seattle, for Respondents.

SMITH, J.

Appellant G. Andrew H. Benjamin seeks direct review of a King County Superior Court partial summary judgment which dismissed his claims that termination of his employment by the Washington State Bar Association violated his free speech rights under both the federal and state constitutions and of a summary judgment granting qualified immunity to Respondent Dennis P. Harwick, Executive Director of the Association. We granted review. We affirm.

QUESTIONS PRESENTED

The questions presented in this case are whether the trial court was correct in dismissing Appellant G. Andrew H. Benjamin's free speech claims and in granting Respondent Dennis P. Harwick qualified immunity on Appellant's free speech claims.

STATEMENT OF FACTS

On January 16, 1995, Appellant G. Andrew H. Benjamin filed in the King County Superior Court a complaint against Respondents Dennis P. Harwick, in his individual capacity, and Rebecca Harwick, his wife. ¹ On August 1, 1995, Appellant filed in the King County Superior Court a complaint against the Washington State Bar Association. ² Upon Appellant's motion, the cases were consolidated October 18, 1995. ³

In his complaint against Respondents Harwick, Appellant claimed his termination as director of the Lawyer Assistance Program (LAP) ⁴ of the Washington State Bar Association (WSBA) by Respondent Dennis P. Harwick, at that time executive director of the WSBA, violated Appellant's free speech rights under the First Amendment of the United States Constitution, article I, Section 5 of the Washington State Constitution, ⁵ and 42 U.S.C. § 1983. ⁶ The First Amendment reads, "Congress shall make no law ... abridging the freedom of speech...." Article I, section 5 of the Washington Constitution provides "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." 42 U.S.C. § 1983 reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In his complaint against the WSBA, Appellant contended that the WSBA violated article I, section 5 of the Washington Constitution in not supporting a grant proposal he had submitted and in threatening not to accredit a Continuing Legal Education seminar if he participated in it after his termination. ⁷ Based on these actions, Appellant also asserted defamation and false light claims. ⁸

Appellant was hired by the WSBA and on November 10, 1986 was assigned as director of the WSBA's Lawyer Assistance Program. ⁹ Dennis P. Harwick became executive director of the WSBA on December 1, 1990. ¹⁰ The LAP was created under Washington Court General Rule (GR) 12 which includes in its authorization to the WSBA [m]aintaining, in its discretion, "a program for the aid and rehabilitation of impaired members[.]" ¹¹ Through the LAP, counseling for attorneys is provided by WSBA-employed therapists, which included Appellant, who was also director of the LAP. ¹²

Appellant Benjamin in his complaint asserted the LAP achieved "national prominence" ¹³ and that he had received positive performance appraisals. ¹⁴ He also claimed that, in September 1993, Respondent Harwick informed him he wanted the LAP to be "self-funding" in order not to "drain" the resources of the WSBA. ¹⁵ Appellant claimed Mr. Harwick wanted the LAP to increase its revenue fivefold from $10,000 to $50,000. ¹⁶ Appellant voiced his objection to Mr. Harwick concerning increasing LAP client fees to enhance revenues of the WSBA. ¹⁷ That objection is a central focus of this case. At a staff retreat in October 1993, ¹⁸ Appellant expressed his opposition to a fee increase to the LAP staff and later to the LAP Steering Committee. ¹⁹ The Steering Committee on November 4, 1993 unanimously voted against the fee increase. ²⁰

Appellant claimed that on November 5, 1993, the day following the meeting of the Steering Committee, he received from Mr. Harwick an unsatisfactory performance appraisal dated November 4, 1993 and was told he was being terminated and required to leave the office by April 30, 1994. ²¹ In the performance appraisal, Respondent Harwick wrote that Dr. Benjamin's termination would be immediate if he made an "end-run." ²²

Appellant filed two grievances with the WSBA Grievance Committee which unanimously rejected both. ²³ Appellant claimed that after he filed his first grievance Mr. Harwick informed him his termination date would be accelerated from April 30, 1994 to December 31, 1993. ²⁴

Appellant claimed in addition that, after his termination, the WSBA took retaliatory action against him by refusing to support a grant proposal he had submitted which Mr. Harwick previously had supported before the adverse employment decision. ²⁵ Appellant also asserted that the employees of the WSBA told the chairperson of a CLE seminar Appellant could not participate, and, if he did participate, the WSBA would not give CLE credit for the seminar. ²⁶ Appellant further claimed these comments by WSBA employees to the CLE seminar chairperson were further publicized, thus supporting his defamation and false light claims. ²⁷

Appellant Benjamin on January 16, 1995 filed claims in the King County Superior Court against Respondents Harwick and on August 1, 1995 against Respondent WSBA for violation of his free speech rights under 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and article I, section 5 of the Washington Constitution; and for defamation and false light under article I, section 5 of the Washington Constitution. Among other things, he asked for compensatory and punitive damages and injunctive relief against all Respondents. ²⁸

On September 6, 1996, Respondents Harwick and the WSBA moved for partial summary judgment to dismiss Appellant's free speech claims under the federal and state constitutions and 42 U.S.C. § 1983. ²⁹ Respondents contended there was no violation of the federal constitution and 42 U.S.C. § 1983 because there was no "action under the color of state law" ³⁰ when Respondent Harwick terminated Appellant. ³¹ Respondents asserted that Mr. Harwick was acting as "the executive director of a privately funded organization, engaged in the internal business of managing its staff, as was his charge under the WSBA Bylaws." ³² Respondents further contended the issue was not a matter of public concern, a necessary requirement for determining constitutionally protected speech, even if the termination did constitute state action. ³³ In addition, Respondents asserted Appellant was a "policymaker" and thus had more limits on his free speech as a public employee than he otherwise would have. ³⁴

Respondents also contended there was no violation of article I, section 5 of the Washington Constitution because there was no state action either when Mr. Harwick terminated Dr. Benjamin or in the post-termination actions Appellant claims the WSBA took against him as retaliation. ³⁵

In addition to the motion for partial summary judgment on the free speech claims, Respondents Harwick, on September 6, 1996, moved for dismissal of the complaint by a supplemental motion for summary judgment claiming qualified immunity. ³⁶ They contended that at the time of Dr. Benjamin's termination the law was not clearly established that the termination constituted state action, nor was the law clearly established that Dr. Benjamin's speech was constitutionally protected. ³⁷

On November 8, 1996, the King County Superior Court, the Honorable Michael J. Trickey, granted both the motion for partial summary judgment on Appellant's free speech claims and Respondents Harwick's supplemental motion for summary judgment under the doctrine of qualified immunity. ³⁸ The court found as a matter of law that Dr. Benjamin's termination by Mr. Harwick did constitute state action ³⁹ and that the matter of increasing fees for clients in the LAP program was one of public concern. ⁴⁰ The court found, however, that "the WSBA's interest in managing its responsibilities outweighs the value of plaintiff's free speech interest." ⁴¹ In addition, the court determined that Dr. Benjamin was a "policymaker," and for that reason "his freedom of speech interests were overridden by the WSBA's interest in functioning effectively." ⁴²

In granting Mr. Harwick qualified immunity, the court found that, at the time of Dr. Benjamin's termination, the law was not "clearly established" that the WSBA was a "public entity for purposes of Benjamin's termination," nor was...