Eugster v. Littlewood

STEPHEN KERR EUGSTER, Appellant, v. PAULA C. LITTLEWOOD, Executive Director of theWASHINGTON STATE BAR ASSOCIATION in her official capacity,and the WASHINGTON STATE BAR ASSOCIATION, Respondents.

No. 81435-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

October 5, 2020

UNPUBLISHED OPINION

CHUN, J. — After the Washington State Bar Association (WSBA) denied Stephen Eugster's request for membership records in a particular electronic format, he sued the WSBA and its former executive director seeking the same records. The trial court dismissed the complaint, determined that Eugster's suit was frivolous, and entered a judgment awarding attorney fees to the defendants. Through General Rule (GR) 12.4, the Washington Supreme Court has established the exclusive means to obtain bar records. Eugster's argument to the contrary is untenable. The trial court properly dismissed the complaint and did not abuse its discretion in granting the defendants' motion for attorney fees or in determining the amount of fees. We affirm.

I. BACKGROUND

Attorney Stephen Eugster has filed a number of lawsuits against the WSBA in state and federal court in both his personal and representative capacities.¹ Those cases have mainly involved the issues of mandatory bar membership, license fees, and the WSBA's discipline system. This litigation, involving the duty of the WSBA to generate and provide records upon request, is apparently the most recent area of dispute.

In July 2016, Eugster submitted a request for records to the WSBA's public records officer using the process outlined in GR 12.4 ("Washington State Bar Association Access to Records"). He requested "[m]ember names, admit dates, bar no. and e-mail addresses." The public records officer informed Eugster that the information he sought is publicly available through the online lawyer directory maintained by the WSBA and referred him to the WSBA's policies on mailing lists. According to its policy, the WSBA does not provide lists of members' public e-mail addresses except in three limited circumstancesinvolving vendors of continuing legal education programs, candidates for the WSBA Board of Governors, and WSBA sections. Eugster requested internal review of the decision by the WSBA's executive director, who affirmed the decision of the public records officer. See GR 12.4(h)(1).

Eugster then requested "external" review by the records request appeals officer. See GR 12.4(h)(2). In his briefing, Eugster made it clear that he wanted information about bar members to be delivered in "digital format," specifically in a "data file" that was compatible with certain software, such as "Excel, Word Perfect, Quattro Pro." The records request appeals officer denied the appeal, concluding that Eugster had the opportunity to view bar member information, which satisfied the "access" requirement of the rule. See GR 12.4(c)(1) (defining "access" as "the ability to view or obtain a copy of a Bar record."). The appeals officer also noted that the WSBA has no obligation to create records or provide information in a "more user-friendly" format. See GR 12.4(c)(2) ("Nothing in this rule requires the Bar to create a record that is not currently in the possession of the Bar at the time of the request.")

Eugster sought discretionary review by the Washington Supreme Court. GR 12.4(h)(2). The court denied review, based on the lack of "probable error" that would warrant the exercise of the court's "supervisory action."

About six months later, in November 2017, Eugster sent a letter to the WSBA's executive director, seeking the same information, again, in a digital format. The executive director responded that Eugster's request was duplicative of his previous request, which had been fully resolved in 2016. The executivedirector informed Eugster that his request was "completed and closed" and that any new request must be submitted in writing to the public records officer as set forth in GR 12.4.

Representing himself, Eugster then filed a "Petition for Declaratory Judgment and Writs of Mandamus to the WSBA and its Executive Director" in superior court.² Eugster set forth the substance of his November 2017 correspondence with the WSBA's executive director. He asserted a "common law right to the records requested in the form requested" and sought both declaratory judgment and a writ of mandamus directing the WSBA to supply the requested information in digital format. Shortly after suing, he filed a motion for summary judgment.

The WSBA and its executive director (collectively, the WSBA) moved to dismiss the petition. The WSBA asserted, among other things, that Eugster failed to state a valid claim for relief because GR 12.4 exclusively governs access to WSBA records. Following a hearing on the parties' cross motions, the court denied Eugster's motion, granted the WSBA's motion, and dismissed Eugster's complaint with prejudice.

The WSBA then filed a motion for an award of attorney fees under RCW 4.84.185 for the fees incurred in defending against Eugster's lawsuit. Following a hearing, the court granted the motion. In its written findings and conclusions, the court concluded that Eugster's legal claim was "foreclosed by aplain reading of GR 12.4" and his complaint was frivolous and "advanced without reasonable cause."

The WSBA moved for an award of $66,800, the amount of fees incurred. The WSBA supplied documentation to support the fees billed by its counsel. Eugster opposed the amount of fees requested and sought sanctions. After a hearing, the court found that the "rates negotiated and paid by the WSBA were reasonable," and that while ultimately frivolous, responding to Eugster's claims required substantial effort. After deducting specific billing entries to avoid potential duplication, the court awarded fees of $58,114.50 to the WSBA. Eugster appeals.

II. ANALYSIS

When addressing the WSBA's motion to dismiss Eugster's complaint, the trial court considered materials outside the pleadings. Under CR 12(b)(6), a defendant may move to dismiss a plaintiff's pleadings that fail to state a claim for which relief can be granted. But if the court considers matters outside the pleadings when deciding a dispositive motion under CR 12(b)(6), the motion must be treated as one for summary judgment under CR 56. CR 12(b)(7); Berst v. Snohomish County, 114 Wn. App. 245, 251, 57 P.3d 273 (2002). Thus, we review the decision on the motion under summary judgment standards. Berst, 114 Wn. App. at 251.

We review summary judgments de novo. Specialty Asphalt & Constr., LLC v. Lincoln County, 191 Wn.2d 182, 191, 421 P.3d 925 (2018). The moving party is entitled to summary judgment as a matter of law "when there is nogenuine issue as to any material fact." Id. We construe all facts and inferences in favor of the nonmoving party to determine whether an issue of material fact exists. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). "A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation." Id.

The relevant facts here are not in dispute. The determinative issue is whether Eugster has a common law right of "[m]ember access" to WSBA records that allows him to avoid the requirements and parameters of GR 12.4. We review de novo this question of law. See Blueberry Place Homeowners Ass'n v. Northward Homes, Inc., 126 Wn. App. 352, 358, 110 P.3d 1145 (2005).

Eugster relies on authority from other jurisdictions, and mainly on an early 20th century case decided by the Supreme Court of Pennsylvania, McClintock v. Young Republicans of Philadelphia, 210 Pa. 115, 59 A. 691 (1904) (member of an incorporated association was entitled to inspect membership list in order to oppose organizational policies, the election of certain officials, and advocate new directions). According to Eugster, this authority establishes a common law right to the records he seeks from the WSBA and supports the position that he is not bound by the procedural requirements and substantive measures set forth in GR 12.4. He is wrong on both counts.

Under Washington precedent, a common law right to access and inspect corporate records does not apply outside the context of shareholder investors in traditional stock corporations. See State ex. Wicks v. Puget Sound Savings & Loan Ass'n, 8 Wn.2d 599, 602, 113 P.2d 70 (1941) (common law right ofinspection not applicable to savings and loan association because such associations and their members are significantly different from "ordinary stock companies" and shareholders); Save Columbia CU Comm. v. Columbia Cmty. Credit Union, 134 Wn. App. 175, 193, 139 P.3d 386 (2006) (applying Wicks to conclude no right to inspect records, given the state's "extensive regulatory oversight" and fundamental differences between credit union members and corporate shareholders). Without question, the WSBA is not an ordinary stock company and its members are not corporate shareholders.

The WSBA, created by the State Bar Act of 1933, RCW 2.48 et seq., operates under the authority of the judicial branch and its functions are directly "related to and in aid of" the judiciary.³ Wash. State Bar Ass'n v. State, 125 Wn.2d 901, 907, 890 P.2d 1047 (1995). "The ultimate power to regulate court-related functions, including the administration of the Bar Association, belongs exclusively" to the Washington Supreme Court. Id. at 909.

One of the basic functions of the judicial branch of government is the regulation of the practice of law. The Bar Association is sui generis and many of its functions are directly related to and in aid of the judicial branch of government. It is important to keep in mind in this connection that the Bar Association does not receive any appropriation from the Legislature or any other public body. It is funded entirely by mandatory membership licensing fees and various user fees, including continuing legal education (CLE) revenues, bar examination

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