Opinion
No. 31276-0-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skamania County. Docket No. 03-2-00137-8. Judgment or order under review. Date filed: 12/11/2003. Judge signing: Hon. E. Thompson Reynolds.
Counsel for Appellant(s), Ernest M. Edsel, Attorney at Law, PO Box 733, Vancouver, WA 98666.
Counsel for Respondent(s), E. Bronson Potter, Clark Co Prosc Atty Ofc, PO Box 5000, Vancouver, WA 98666-5000.
Jane Citizen, I and Jane Citizen, IV (Citizens) appeal a summary judgment dismissing their claims against the Clark County Board of Commissioners, the chief administrative judge of the Clark County Superior Court, and the commissioners of the Clark County Juvenile Court (Clark County). The Citizens' amended complaint alleged that they and other parents in Clark County dependency actions had been denied effective assistance of counsel in those actions. The Citizens contend that the trial court: (1) erred in dismissing their class action complaint before ruling on their class certification motion; (2) erred in converting a CR 12(b)(6) motion to a summary judgment and then granting summary judgment without giving them sufficient time to respond to the summary judgment motion; (3) should have disqualified itself after receiving an ex parte communication from Clark County; and (4) erred in granting summary judgment in favor of Clark County. Concluding that each of these arguments fails, we affirm.
Facts
On April 24, 2003, Jane Citizen, I filed a class action complaint against the Clark County Board of Commissioners (Board). That complaint asserts that the Board fails to provide her, and other indigent parents who are parties to dependency proceedings in Clark County Juvenile Court, 'constitutionally and statutorily adequate legal representation.' Clerk's Papers (CP) at 6. Jane Citizen, I alleges that because her appointed counsel inadequately represented her, she lost custody of her son five years earlier in a dependency action 'based on false and misleading allegations that [she] had abandoned her son and otherwise neglected him.' CP at 12.
Jane Citizen, I alleges that the Board 'refuses to provide court-appointed attorneys with adequate compensation, training, and other resources that are reasonably necessary for the effective defense of all indigent defendants' and that it 'chooses, contracts, and retains incompetent, negligent, unfit, or unqualified attorneys while also refusing to . . . monitor every attorney's fitness and the quality of the legal representation provided to every indigent defendant.' CP at 13. She asserts that the Board's failure to adequately fund indigent defense services in dependency cases and to monitor appointed counsel's performance violates indigent parents' statutory and constitutional rights to effective representation.
Jane Citizen, I moved to certify as a class all indigent parents who are parties to dependency proceedings in Clark County. She also sought injunctive relief requiring the Board to fund the indigent defense contracts for dependency proceedings at an adequate level and to employ a special master to monitor the quality of appointed counsels' performance.
On September 23, 2003, the Citizens filed an amended class action complaint, which added Jane Citizen, IV as a class plaintiff, alleging that she received inadequate assistance of counsel in her dependency proceeding. The amended class action complaint also added allegations that the chief administrative judge of Clark County Superior Court and the commissioners of the Clark County Juvenile Court had failed to ensure that they, and all other indigent parents who are parties to dependency proceedings, were receiving effective assistance of counsel. The amended class action complaint sought the same relief as the class action complaint.
On October 6, 2003, the Board moved to dismiss the amended class action complaint under CR 12(b)(6), asserting that Jane Citizen, I had failed to state a claim on which the court could grant relief. Among other defenses, the Board argued that indigent parents in dependency actions have no legally enforceable claim against the Board.
It is not clear from the record whether the Board or the other defendants had been served with the amended class action complaint when Clark County filed its CR 12(b)(6) motion.
The Board argued that the Citizens' claims were barred by the statute of limitations, collateral estoppel, and the Citizens' failure to file a claim against the County.
Clark County had noted its motion to dismiss for October 16, 2003. On October 15, 2003, the Citizens responded, arguing in part that the court could not consider a motion to dismiss until it decided whether it would certify a class (although they had not yet filed a motion to certify a class), and that they had legally enforceable claims against Clark County. To their response, they attached an affidavit from Jane Citizen, I, detailing her grievance regarding the performance of her appointed counsel.
The court heard argument on Clark County's motion on October 16, 2003. Clark County moved to strike the Citizens' response as untimely. The Citizens asked the court not to rule on the motion to dismiss until they filed a motion for class certification. The court reserved ruling on the motion to dismiss and directed the Citizens to move for class certification by October 31, 2003.
On November 3, 2003, the Citizens moved for class certification and to add class plaintiffs. Those motions, along with Clark County's motion to dismiss, were noted for December 11, 2003. On December 9, 2003, Clark County submitted a memorandum, arguing that the Citizens had converted the CR 12(b)(6) motion to a CR 56 summary judgment motion by submitting affidavits containing matters 'outside the existing record.' CP at 326-36. Clark County also responded to the Citizens' motion for class certification. Clark County sent its reply and response pleadings to the trial judge with a cover letter:
Enclosed you will find the defendants' reply memorandum relating to their motion to dismiss, the defendants' response memorandum relating to the motion to certify a class, and two proposed orders. The hearing on these motions is scheduled for December 11th at 4:00 p.m. I would suggest that the motion to dismiss be considered first because, if granted, it would obviate the need to hear the motion to certify.
Exhibit A.
A commissioner of this court granted Clark County's motion to supplement the record on appeal with the cover letter.
The letter was not filed with the clerk's office and the Citizens' counsel states that he did not receive a copy.
At oral argument on December 11, 2003, the court heard Clark County's motion to dismiss first. Clark County argued that: (1) the Citizens had converted the County's CR 12(b)(6) motion into a summary judgment motion; and (2) the Citizens had not met their burden of bringing forth sufficient evidence to demonstrate genuine issues of fact. The Citizens responded that: (1) they had not converted the CR 12(b)(6) motion to a summary judgment motion; and (2) they needed additional discovery time to respond to a summary judgment motion. The court considered the matter as a summary judgment motion and denied the Citizens' request for additional time to conduct discovery. The court also ruled that Clark County was not responsible for appointed counsels' performance in dependency proceedings, concluding that Clark County had no duty beyond 'providing attorneys at public expense.' Report of Proceedings (RP) (Dec. 11, 2003) at 40. The court granted Clark County summary judgment without addressing the Citizens' class certification motion. The Citizens appeal.
The court did not address Clark County's arguments that the statute of limitations and collateral estoppel barred the Citizens' actions.
Discussion I. Sequence of Motions
The Citizens argue that the court erred in deciding Clark County's motion for summary judgment before considering their class certification motion. They rely on Washington Education Ass'n v. Shelton School District No. 309, 93 Wn.2d 783, 790, 613 P.2d 769 (1980), which states 'certification of a class is to be undertaken with no consideration of the merits of the plaintiffs' claims.' They also rely on Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974), which states:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it.
The trial court had conducted a preliminary hearing into the merits of the case, found that the petitioner was more than likely to prevail on his claims and then required the respondents to pay 90 percent of the costs of providing notice to the class. Eisen, 417 U.S. at 177.
They read these statements to mean that the court cannot consider a motion to dismiss or a motion for summary judgment before considering a class certification motion because those motions require consideration of the merits of the case.
But in WEA, the court rejected the argument that 'the class certification process must always precede the resolution of CR 12 motions,' holding that 'class certification need not always be undertaken before other pretrial motions are considered.' WEA, 93 Wn.2d at 788 (emphasis in original). In a CR 12(b)(6) motion to dismiss for failure to state a claim, the court must accept as true all of the allegations in the complaint, including all reasonable inferences from those allegations. Howell v. Alaska Airlines, Inc., 99 Wn. App. 646, 648, 994 P.2d 901 (2000) (citing Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1988)). In a CR 56 summary judgment motion, the court must consider the evidence and all reasonable inferences from it in the light most favorable to the non-moving party. Magula v. Benton Franklin Title Co., 131 Wn.2d 171, 182, 930 P.2d 307 (1997). Motions to dismiss under CR 12(b)(6) and motions for summary judgment under CR 56 do not require or allow the court to weigh the merits of the case. Rather, the court determines whether the facts alleged or presented by the class can support the case, assuming them to be true. Judicial economy would be hindered if the court could never consider a CR 12(b)(6) motion or a CR 54 summary judgment motion before considering a class certification motion. Under the circumstances of this case, the court did not err in considering, and granting, the motion for summary judgment without first considering the Citizens' class certification motion.
II. Conversion of CR 12(b)(6) Motion to Summary Judgment Motion
The Citizens argue that the court erred in converting Clark County's CR 12(b)(6) motion to a motion for summary judgment under CR 56. They contend that the affidavits they submitted are not 'matters outside the pleadings' that under CR 12(b), would convert the CR 12(b)(6) motion to a summary judgment motion. Affidavits submitted in response to a CR 12(b)(6) motion are 'matters outside the pleadings' that convert the motion into a summary judgment motion. Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). The court did not err in treating Clark County's CR 12(b)(6) motion as a CR 56 summary judgment motion.
CR 12(b) provides in pertinent part, 'If, on a [CR 12(b)(6) motion] . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56.'
The Citizens also argue that the court erred in considering the summary judgment motion on December 11, 2003, because Clark County had not given it the 28 days' notice required under CR 56(c) for summary judgment motions. But when a CR 12(b)(6) motion is converted into a CR 56 motion, the notice requirements of CR 56(c) do not apply. Foisy v. Conroy, 101 Wn. App. 36, 40, 4 P.3d 140 (2000). Rather, the court must give all parties 'reasonable opportunity to present all material made pertinent to such a motion by rule 56.' CR 12(b). The court ruled that the Citizens had a reasonable opportunity to submit information that would support its claims but had not done so. The Citizens demonstrate no error in the court's ruling. They accuse Clark County of 'stealthily convert[ing]' the CR 12(b)(6) motion to a CR 56 motion in its reply memorandum filed on December 9, 2003. Br. of Appellant at 31. But it was the Citizens' filing of affidavits in opposition to the CR 12(b)(6) motion on October 15, 2003, that converted the motion from a CR 12(b)(6) motion to a CR 56 motion, not any action by Clark County.
The Citizens also argue that the court abused its discretion when it refused to continue the summary judgment motion to allow them more discovery time. Under CR 56(f), the court may continue a summary judgment motion to permit discovery. But such a continuance is discretionary and we review the trial court's denial of a continuance for an abuse of discretion. Manteufel v. Safeco Ins. Co., 117 Wn. App. 168, 175, 68 P.3d 1093, review denied, 150 Wn.2d 1021 (2003); Hewitt v. Hewitt, 78 Wn. App. 447, 455, 896 P.2d 1312 (1995). If the requesting party does not state what evidence would be established through additional discovery, or if the proposed evidence would not raise a genuine issue of material fact, the trial court does not abuse its discretion when it denies a continuance. Manteufel, 117 Wn. App. at 175; Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989). The Citizens did not identify discovery that would lead to evidence that would raise a genuine issue of material fact regarding its claims. The trial court did not abuse its discretion in denying their request for a continuance of the summary judgment motion.
III. Disqualification of Judge
The Citizens argue that the trial judge violated Code of Judicial Conduct (CJC) 2(A) when he granted Clark County's summary judgment motion before considering their class certification motion. But as addressed above, the judge did not err in considering the summary judgment motion before the class certification motion, and so did not violate CJC 2(A).
'Judges should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.'
The Citizens also argue that the judge violated CJC 3(A)(4) when he considered the December 9 cover letter from Clark County, which was never filed and which the Citizens' counsel did not receive. They contend that the judge relied on Clark County's argument in the cover letter that he should consider its summary judgment motion before considering their class certification motion. They contend that the judge should have disqualified himself after considering and relying on the argument in the cover letter. But they have never asked the judge to disqualify himself for considering the cover letter and there is no evidence in the record suggesting that the judge knew the cover letter to be an ex parte communication when he considered it. Under CJC 3(D)(1), a judge should disqualify himself or herself when 'their impartiality might reasonably be questioned.' The reasonableness of questioning a judge's impartiality is tested against an objective test 'that assumes that 'a reasonable person knows and understands all the relevant facts.'' Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)). Under that test, the impartiality of the judge in this case cannot be reasonably be questioned. He did not know that the cover letter was an ex parte communication. He relied on it only for its suggestion that if he heard the summary judgment motion before the class certification motion, a hearing on the class certification motion might not be necessary. See In re Marriage of Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002). And as addressed above, he did not err in hearing the summary judgment motion first. Even had he been asked to disqualify himself, he would not have been required to do so under CJC 3(B)(4) and 3(D)(1).
'Judges should . . . neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.'
Finally, the Citizens argue that the trial judge should have disqualified himself under CJC 3(D)(1)(a) because he had 'personal knowledge of disputed evidentiary facts concerning the proceeding.' Br. of Appellant at 35. They contend that when he mentioned that Skamania County used independent contractors to provide legal services for indigent parents in dependency proceedings, and suggested that Clark County did the same, he was introducing his personal knowledge. But his personal knowledge was of the practices of Skamania County, which is not a party to this case, and not of the practices of Clark County, which is. The trial judge was not required to disqualify himself under CJC 3(D)(1)(a).
IV. Summary Judgment
The Citizens argue that the trial court erred in granting summary judgment to Clark County. They contend that Clark County did not meet its burden of establishing "(1) that there is no genuine issue as to any material fact, (2) that all reasonable persons could reach only one conclusion, and (3) that the moving party is entitled to judgment as a matter of law." Higgins v. Stafford, 123 Wn.2d 160, 169, 866 P.2d 31 (1994) (quoting Peterick v. State, 22 Wn. App. 163, 180-81, 589 P.2d 250 (1977), overruled on other grounds in Stenberg v. Pac. Power Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985)). Clark County responds that it met its initial burden of showing the absence of any issues of material fact and it was the Citizens who failed to meet their burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989) (quoting CR 56(e)).
Indigent parents in dependency and termination proceedings have a statutory right to the appointment of counsel throughout the proceeding. RCW 13.34.090(2); In re Dependency of Grove, 127 Wn.2d 221, 232, 897 P.2d 1252 (1995). They also have a constitutional right to the appointment of counsel. In re Welfare of Myricks, 85 Wn.2d 252, 253, 533 P.2d 841 (1975) (dependency proceedings); In re Welfare of Luscier, 84 Wn.2d 135, 139, 524 P.2d 906 (1974) (termination proceedings). And indigent persons entitled to legal representation must be provided 'effective legal representation.' RCW 10.101.005. If 'an attorney was not effective in providing a meaningful hearing, due process [guarantees] have not been met.' In re Moseley, 34 Wn. App. 179, 184, 660 P.2d 315 (1983).
The Citizens have averred various failures of their appointed counsel that they contend demonstrate that counsel did not effectively represent them. But what they have not demonstrated is that Clark County had any duty to assure that the Citizens received effective legal representation. The juvenile court complied with RCW 13.34.090(2) by appointing counsel for the Citizens. The Board entered into contracts with those counsel to provide representation for indigent parents in dependency proceedings. Those counsel held valid licenses to practice law in the State of Washington. The record is silent on any requests by the Citizens that the juvenile court appoint them substitute counsel because their current counsel were not providing effective representation. Nor do the Citizens demonstrate that either the juvenile court or the Board has a duty to supervise appointed counsel in dependency proceedings.
The Citizens rely on Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986), pointing to language that '[t]he Sixth Amendment mandates that the State bear the risk of constitutionally deficient assistance of counsel.' Kimmelman, 477 U.S. at 379. In Kimmelman, the court considered whether an incarcerated person could collaterally attack by habeas corpus his conviction on the basis that his counsel was ineffective for not challenging the legality of a search. The court had previously held that a Fourth Amendment challenge to a state court decision, refusing to exclude illegally obtained evidence, was not subject to collateral attack in the federal court. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). In deciding Stone, the court balanced the benefits of the exclusionary rule against the costs to the state of overturning convictions. The language the Citizens point to is Kimmelman's discussion of why the same balancing is inappropriate in a Sixth Amendment right to effective counsel claim. Kimmelman did not hold that a state or county has a duty to monitor appointed counsel's performance even in a criminal proceeding. Kimmelman does not help the Citizens.
Indigent parents who believe their appointed counsel is ineffective have a number of remedies. They can ask the juvenile court to appoint new counsel. If the juvenile court declines, they can ask the superior court to revise the juvenile court's decision. They can move to dismiss the dependency on grounds their counsel was ineffective. And they can bring malpractice actions against their appointed counsel. But the Citizens have cited no authority that the juvenile court or the Board has a duty to monitor the on-going performance of appointed counsel in dependency proceedings. Whether Clark County owes such a duty to the Citizens is a legal question. Keller v. City of Spokane, 146 Wn.2d 237, 243, 44 P.3d 845 (2002). Because the Citizens have failed to provide authority supporting such a duty, the trial court did not err in granting summary judgment to Clark County.
Although the Citizens allege that the appointed counsel program in Clark County is underfunded, they also allege that '[t]he vast majority of attorneys who serve as Clark County's court-appointed lawyers are excellent if not superb defense counsel in felony, misdemeanor, and dependency cases before the court.' CP at 128. Taken at face value, Citizens is alleging that although the appointed counsel program is underfunded, the system is functioning well with only isolated cases of inadequate representation.
Clark County also argues that collateral estoppel bars the Citizens' actions. Because the trial court did not address this argument, we decline to address it on appeal.
V. Conclusion
The core of the Citizens' amended complaint is that inadequate funding by Clark County for legal services for indigent parents in dependency proceedings has resulted, and continues to result, in those parents receiving ineffective assistance of counsel. While increasing the funding for legal services for indigent persons may be a laudable goal, it is an issue for the political process, not the legal process. We hold that the trial court did not err in considering Clark County's summary judgment motion before ruling on the Citizens' class certification motion, that it did not err in converting Clark County's CR 12(b)(6) motion into a summary judgment motion, that the trial judge was not obliged to disqualify himself, and that the trial court did not err in granting Clark County's summary judgment motion. Accordingly, we affirm the summary judgment order.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., Concur.