Actions against the Government
To bring an action, the government must owe
the plaintiff a duty, the government must not have sovereign immunity, the duty
must not be limited by the public duty doctrine, and proper notice must be given
to the government. There also may be choice of law issues when a foreign state
is sued in a sister state's court.
The common law doctrine of discretionary
immunity was described in Haberman v WPPSS, 109 Wn.2d 107, 158, 744 P.2d
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
Public Duty Doctrine
Haberman v WPPSS, 109 Wn.2d 107, 159,
744 P.2d 1032 (1987):
The public duty doctrine determines the scope of duty
involved where public services are provided. J & B Dev. Co. v. King Cy.,
100 Wn.2d 299, 303, 669 P.2d 468, 41 A.L.R.4th 86 (1983). The doctrine
limits governmental liability arising out of its provision of public
services to breach of a duty owed specifically to one plaintiff, rather than
the public generally. J & B Dev. Co., at 303-05.
Other States Immunity
Haberman v WPPSS, 109 Wn.2d 107, 159, 744 P.2d 1032
When faced with claims of other states’ immunity, this
court uses the most significant relationship test, then evaluates the
policies behind the interested states whose policies conflict. Johnson v.
Spider Staging Corp., 87 Wn.2d 577, 582, 555 P.2d 997 (1976);
Southwell v. Widing Transp., Inc., 101 Wn.2d 200, 204, 676 P.2d 477
(1984); see also Biscoe v. Arlington Cy., 738 F.2d 1352, 1359 (D.C.
Cir. 1984) (states faced with claims of immunity by sister states have
resolved the issue by reference to the forum state’s policy on comity, not
by rigid application of choice of law rules), cert. denied, 469 U.S. 1159
(1985). The elements of the significant relationship test include: (a) the
place of injury; (b) the place where the conduct causing the injury
occurred; (c) the residence of the parties; and (d) the place where the
relationship is centered. Restatement (Second) of Conflict of Laws § 145