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Governmental Immunity Defined

    The common law doctrine of discretionary immunity was described in Haberman v WPPSS, 109 Wn.2d 107, 158, 744 P.2d 1032 (1987):

Discretionary immunity is a narrow court-created exception to the Legislature’s abolition of sovereign immunity. Bender v. Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983); Evangelical United Brethren Church v. State, 67 Wn.2d 246, 255, 407 P.2d 440 (1965). Discretionary immunity serves to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Bender, at 588; King v. Seattle, 84 Wn.2d 239, 246, 525 P.2d 228 (1974). To be protected by such immunity, an act, omission, or decision must involve an exercise of basic policy evaluation, judgment and expertise by the governmental agency involved. Evangelical United Brethren Church, at 255. The activity must involve basic policy discretion rather than the implementation of policy. Mason v. Bitton, 85 Wn.2d 321, 327-29, 534 P.2d 1360 (1975); Bender, at 588-90. Thus, only “high level discretionary acts exercised at a truly executive level” are protected. Bender, at 588.

Arguably, the Supply System’s decision to build the WNP 4 and WNP 5 is immune as a discretionary act. However, intervenors challenge the means by which that decision was carried out. Intervenors allege that respondents made fraudulent statements and omissions, which were used in the Official Statements and Annual Reports by the Supply System to sell bonds to finance the project. Thus, the acts complained of by intervenors do not involve discretionary acts, or policy decisions by the Supply System; rather they involve the mechanism by which the Supply System implemented its decision to build the project. As a result, discretionary immunity does not bar intervenors’ fraud claims. See Miotke v. Spokane, 101 Wn.2d 307, 337, 678 P.2d 803 (1984) (decision to build sewage bypass was not a basic policy decision protected by discretionary immunity because the decision was based on technical engineering and scientific judgment); Stewart v. State, 92 Wn.2d 285, 294, 597 P.2d 101 (1979) (decision to build a freeway was a basic policy decision, but its design and lighting was not protected by discretionary immunity). Algona v. Pacific, 35 Wn. App. 517, 520, 667 P.2d 1124, review denied, 100 Wn.2d 1028 (1983) (municipality furnishing sewer facilities functioning in proprietary capacity and not immune to suit).







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