RS, C:T Co RN - Xi
RS, C:T Co RN - Xi
COBAIN, )
) UNPUBLISHED OPINION
Respondents, )
)
and )
)
COURTNEY LOVE COBAIN and )
FRANCES BEAN COBAIN, )
)
Cross-Claimants, )
)
v. )
)
CITY OF SEATTLE, SEATTLE POLICE)
DEPARTMENT, )
)
Cross-Claim Defendants. ) FILED: May 14, 2018
)
DWYER, J. — Richard Lee appeals from the trial court's order granting
summary judgment in favor of the City of Seattle and the Seattle Police
Department(collectively the City). On appeal, Lee contends that the trial court
erred by concluding that the photographs and documents that he requested were
exempt from disclosure. Also at issue is the trial court's order granting summary
No. 75815-2-1/2
Cobain (the Cobains) and permanently enjoining the City from disclosing,
Kurt Cobain, the lead singer of-the band "Nirvana," was discovered dead
on April 8, 1994., The City investigated Mr. Cobain's death, took numerous
photographs of his body, and concluded that the cause of death was a self-
Richard Lee is a local conspiracy theorist who believes that Mr. Cobain
was murdered. Lee visited Mr. Cobain's residence on the day that his body was
discovered and subsequently began creating news and documentary material for
his public access television program. Lee aired his first broadcast concerning
Mr. Cobain's death five days after the discovery of his body. Since then, Lee has
Cobain. Lee has made numerous requests to the City for documents related to
the investigative file on Mr. Cobain's death. Ciesynski located four undeveloped
rolls of film in the police file and subsequently had them developed.1 Most of
I Ciesynski stated in his declaration that it is not unusual to find undeveloped film in old
case files, particularly when the case did not lead to criminal charges.
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No. 75815-2-1/3
Following his review, Ciesynski concluded that the determination of suicide was
correct.
seeking the entirety of the Cobain investigative file. The City provided two
installments of records to Lee. It first furnished him with 37 photographs from the
investigative file and later provided him with the remaining documents in the file.
The City also sent Lee an exemption log that explained which documents or
portions of documents the City had withheld from production and the reasons for
exemption or redaction.
Lee sued the City on March 31, 2014. That lawsuit was dismissed on
procedural grounds on July 31, 2015. That same day, Lee filed a new PRA
request for "ANY AND ALL DOCUMENTS RELATED TO the March, 2014 effort
by providing Lee with the same documents that it had provided pursuant to the
On April 15, 2016, the Cobains were granted intervention in this suit. The
City and the Cobains moved for summary judgment on the question of whether
the death-scene photographs should be disclosed. The City sought a ruling that
the death-scene images were exempt from disclosure pursuant to the PRA, RCW
42.56.240(1).4 The Cobains sought to permanently enjoin the City from releasing
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No. 75815-2-1/4
common law and the Fourteenth Amendment to the United States Constitution.
The trial court granted both motions. The trial court ruled that the
substantive due process rights under the Fourteenth Amendment. The trial court
also ruled that the death-scene photographs were exempt under the PRA.5 The
trial court also granted the City's subsequent motion for summary judgment,
concluding that the other documents withheld or redacted by the City were
11
designate in the notice of appeal the decision or part of decision that the party
"separate concise statement of each error a party contends was made by the trial
court, together with the issues pertaining to the assignments of error," as well as
"argument in support of the issues presented for review, together with citations to
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No. 75815-2-1/5
legal authority and references to relevant parts of the record." RAP 10.3(a)(4),
(6).
result in our refusal to consider that issue. State v. Olson, 126 Wn.2d 315, 320,
893 P.2d 629(1995). Indeed,"RAP 1.2(a) makes clear that technical violation of
the rules will not ordinarily bar appellate review, where justice is to be served by
such review... where the nature of the challenge is perfectly clear, and the
challenged finding is set forth in the appellate brief." Daughtry v. Jet Aeration
However,"a complete failure of the appellant to raise the issue in any way
nor in the requested relief' may entirely preclude appellate court consideration of
the issue. Olson, 126 Wn.2d at 320-21. Our Supreme Court has noted that this
narrow rule
makes perfect sense because in the situation where the issue is not
raised at all, the court is unable to properly consider the issue prior
to the hearing and is given no information on which to decide the
issue following the hearing. More importantly, the other party is
unable to present argument on the issue or otherwise respond and
thereby potentially suffers great prejudice.
Olson, 126 Wn.2d at 321-22; see Am v. Martin, 154 Wn.2d 477, 487, 114 P.3d
Here, Lee did not appeal from the trial court's order granting summary
judgment in favor of the Cobains and enjoining the City from disclosing the
death-scene photographs. That order is the only order addressing the Cobains'
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No. 75815-2-1/6
substantive due process rights under the Fourteenth Amendment. Lee did not
assign error to the trial court's due process holding in his appellate brief. Neither
did Lee mention the trial court's due process holding in his statements of issues
pertaining to his assignments of error. Finally, Lee neither discussed the trial
court's due process holding in the argument section of his opening brief, nor did
In his reply brief, Lee asserts that the omission of any mention of the trial
court's due process holding was "purely accidental." However, in his reply to the
Cobains' motion to dismiss, Lee argued that "the references to the due process
clause of the 14th Amendment are a particularly weak aspect of the defendants'
arguments." Lee also extoled the virtues of his "Associate of Technical Arts
with a cumulative 4.0 GPA,the highest attainable grade point average," and
noted that he has "many years in dealing with courts as a pro se litigant and
appeal from, assign error to, analyze, or request relief from the trial court's due
In any event, because Lee entirely failed to appeal from or analyze the
trial court's due process holding, the Cobains were unable to respond to his
arguments on the issue. This prejudiced them as respondents. See Olson, 126
Wn.2d at 321. Moreover, because it was the Cobains who first brought the due
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No. 75815-2-1/7
rebuttal.
Because Lee has failed to appeal from the trial court's order, assign error
to the court's ruling, analyze or otherwise discuss the ruling, or request relief from
the ruling, he forfeits his right to review of the issue and the trial court's order.6
Lee's failure to appeal from, assign error to, analyze, or otherwise request
relief from the trial court's due process ruling provides the basis for affirmance of
tenacity that Lee has displayed in pursuing his theory that Mr. Cobain was
murdered, we believe it will suit the parties' interests for us to expound upon the
of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 497, 210 P.3d 308
viewed in the light most favorable to the nonmoving party, demonstrate that
"there is no genuine issue as to any material fact and that the moving party is
Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220(2005). "Once the
moving party has met this burden, however, the burden shifts to the nonmoving
6 We reach the same conclusion with regard to Lee's assertion that the trial court erred
by "failing to address in its written ruling/order five police photographs not a part of the crime
scene set, to which Lee had stated a statutory claim of $135,000." Lee addresses this contention
for the first time in his reply brief but does not assign error to any order or otherwise discuss or
analyze his contention. Indeed, the only mention of this statutory claim of $135,000 comes from
the statement of issues section of his consolidated reply brief. Lee forfeited review of this issue.
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No. 75815-2-1/8
party to set forth specific facts showing that there is a genuine issue for trial."
Sisters of Providence v. Snohomish County, 57 Wn. App. 848, 850, 790 P.2d 656
(1990). "The nonmoving party cannot simply rest upon the allegations of his
fit the particular circumstances of the case before it." Hoover v. Warner, 189 Wn.
App. 509, 528, 358 P.3d 1174(2015). "[O]ne who seeks relief by temporary or
permanent injunction must show (1)that he has a clear legal or equitable right,
(2) that he has a well-grounded fear of immediate invasion of that right, and (3)
that the acts complained of are either resulting in or will result in actual and
substantial injury to him." Kucera v. Dep't of Transp., 140 Wn.2d 200, 209, 995
Tyler Pipe Indus., Inc. v. Dep't of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213
(1982)).
matter of first impression, whether "the common law right to non-interference with
constitutionally protected." 680 F.3d 1148, 1154 (9th Cir. 2012). The court
recognized that such a right was protected under the Fourteenth Amendment.
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No. 75815-2-1/9
The court then turned to substantive due process. At issue was whether
Marsh's substantive due process rights were violated when San Diego Deputy
Marsh's son. Marsh, 680 F.3d at 1152. The court concluded that this disclosure
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No. 75815-2-1/10
photographs of Mr. Cobain would violate their substantive due process rights
pursuant to the analysis set forth in Marsh. The Cobains assert that they would
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No. 75815-2-1/11
At issue here are photographs that show the dead body of Mr. Cobain.
But the photographs are more than an oddity showcasing the tragic end of a
celebrated musician—to those who knew Mr. Cobain, the photographs show the
declarations establish, the disclosure of these photographs would allow the entire
world to peer into one of the most private and distressing events of the Cobains'
lives. Once released, the photographs would become ammunition for those who
Pursuant to the analysis set forth in Marsh, the trial court correctly
concluded that the release of the death-scene photographs would shock the
conscious and offend the community's sense of fair play and decency, violating
the Cobains' substantive due process rights under the Fourteenth Amendment.
reasonable way to prevent such a violation. There was no error in the trial
court's ruling.
Ill
Lee contends that the trial court erred by granting summary judgment in
favor of the City. This is so, he asserts, because none of the documents that he
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No. 75815-2-1/12
RCW 42.56.550(3); Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d
417, 428, 327 P.3d 600 (2013). The agency carries the burden of establishing
that an exemption applies under the PRA. RCW 42.56.550(1); Resident Action
Council, 177 Wn.2d at 428. "A public records case may be decided based on
affidavits alone." Forbes v. City of Gold Bar, 171 Wn. App. 857, 867, 288 P.3d
presumption of good faith." Forbes, 171 Wn. App. at 867 (citing Trentadue v.
Federal Bureau of Investigation, 572 F.3d 794, 808 (10th Cir. 2009)).
42.56.010(3). "The PRA's mandate for broad disclosure is not absolute. The
from disclosure, and the PRA also incorporates any 'other statute' that prohibits
that sometimes outweigh the PRA's broad policy in favor of disclosing public
records." Resident Action Council, 177 Wn.2d at 432. Importantly, "the basic
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No. 75815-2-1/13
purpose and policy of[the PRA] is to allow public scrutiny of government, rather
governmental operation." In re Rosier, 105 Wn.2d 606, 611, 717 P.2d 1353
(1986).
Lee first contends that the trial court erred by ruling that the death-scene
The PRA requires the disclosure of public records "unless the record falls
within the specific exemptions of. . . [an]other statute which exempts or prohibits
"other statute" exemption. White v. Clark County, 188 Wn. App. 622, 631-32,
354 P.3d 38(2015)(holding that the PRA's "other statute" exemption is derived
Constitution and various other statutes and regulations and noting that IV the
Yakima Herald-Republic, 170 Wn.2d 775, 808, 246 P.3d 768(2011)("other laws'
includes the United States Constitution"); see also Freedom Found. v. Gregoire,
178 Wn.2d 686, 695, 310 P.3d 1252(2013)("the PRA must give way to
constitutional mandates").
the Cobains' substantive due process rights under the Fourteenth Amendment.
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No. 75815-2-1/14
exempt from disclosure pursuant to the PRA's "other statute" provision. RCW
Lee next contends that the trial court erred by granting summary judgment
in favor of the City with regard to the other exempt or redacted documents that
were withheld by the City. These documents include Mr. Cobain's autopsy report
in its entirety, two pages of a nine page drug influence evaluation, redaction of
documents that contain Social Security numbers and credit card information,
redaction of certain documents that contain nonconviction data and jail records,
Autopsy Report
The trial court ruled that Mr. Cobain's autopsy report was exempt from
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No. 75815-2-1/15
RCW 68.50.105(1). This statute is an "other statute" incorporated into the PRA.
disclosure. See Comaroto v. Pierce County Med. Exam'r's Office, 111 Wn. App.
69, 74,43 P.3d 539(2002)(holding that a suicide note was a postmortem report
Lee recognizes that the autopsy report in question "would seem to be the
under the circumstances of this case. Lee asserts variously that "the entire
are routinely displayed as evidence in court proceedings," and that "the City has
for review, together with citations to legal authority and references to relevant
parts of the record." RAP 10.3(a)(6). We will generally not consider claims
801, 809, 828 P.2d 549 (1992). Pro se litigants are held to the same standards
as attorneys and must comply with all procedural rules on appeal. In re Marriage
Autopsy reports are categorically exempt from disclosure under the PRA.
Although Lee contends that the circumstances here warrant disclosure, he fails
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No. 75815-2-1/16
The trial court ruled that the drug influence evaluation was exempt from
42.56.240(1). Mary Perry, the director of transparency and privacy for the City,
submitted a declaration stating that the redacted portions of the drug influence
evaluation in question were "not prepared by SPD, do not mention SPD, and
refer and relate[] solely to Ms. Courtney Love-Cobain, Mr. Cobain's widow. More
specifically, these two pages discuss medical treatment issues, including issues
assists a health care provider in the delivery of health care, or an agent and
employee of a health care provider may not disclose health care information
about a patient to any other person without the patient's written authorization."
associated with the identity of a patient and directly relates to the patient's health
7 RCW 70.96A.150 was repealed effective April 1, 2016, nearly a year after the City
invoked the exemption.
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No. 75815-2-1/17
Lee contends that the requested information is not exempt from disclosure
because the City is not a "health care provider." While this may be so, RCW
provides that "Chapter 70.02 RCW applies to public inspection and copying of
health care information of patients." Prison Legal News, Inc. v. Dep't of Corr.,
154 Wn.2d 628, 644, 115 P.3d 316(2005)(discussing former RCW 42.17.312,
The redaction of the drug influence evaluation was also justified by former
error.
The trial court ruled that the redaction of certain witness identifying
pertinent part, that the following investigative information is exempt from public
inspection:
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No. 75815-2-1/18
the time that they provided information to police during the 1995 investigation of
Mr. Cobain's death. Mary Perry's declaration states that the names redacted by
the City are the names of the people who requested that their identity not be
disclosed in 1995.
Lee is correct that, other than the City's declaration, there is nothing in the
record establishing that the names redacted by the City in response to Lee's
request are the same names that were redacted by request in 1995. But
agency affidavit. Forbes, 171 Wn. App. at 867. The City provided
their identity not be disclosed at the time that they provided information to the
City. Accordingly, those names are exempt from disclosure. There was no error.
Other Redactions
The trial court ruled that redaction of Social Security and credit card
numbers was authorized by RCW 42.56.230(5). The trial court ruled that the
10.97.080 and RCW 70.48.100(2). Finally, the trial court ruled that redactions of
Mr. Cobain's juvenile records and the telephone number of an SPD officer were
card numbers, electronic check numbers, card expiration dates, or bank or other
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No. 75815-2-1/19
prohibits the disclosure of "any nonconviction data except for the person who is
the subject of the record." RCW 70.48.100(2) requires that "the records of a
that 141 records other than the official juvenile court file are confidential."
of a public agency."
"person" and that there is nothing preventing the City from disclosing the
for review, together with citations to legal authority and references to relevant
parts of the record." RAP 10.3(a)(6). Lee provides no authority for his assertion
that the categorical exemptions here apply only to living persons. There was no
error.
Affirmed.
We concur:
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)
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