IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE TYE SHEATS, Appellant,

v. CITY OF EAST WENATCHEE, DOUGLAS COUNTY, CITY OF WENATCHEE, CHELAN COUNTY, The Wenatchee World newspaper,

Respondents. )

) ) ) ) ) ) ) ) ) ) ) No. 3555 5

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PUBLISHED OPINION

L AWRENCE

- B ERREY , C. J.

— RCW 4.28.020 prescribes a procedure before superior courts are deemed to have acquired subject matter jurisdiction over a civil action

. The procedure requires service of a summons or filing of a c omplaint. We hold that the initial pleading filed by Officer Tye Sheats substantially complied with the statutory
req uirement of filing a complaint so that the trial court obtained subject matter jurisdiction over this action. RCW 42.56.250(2) exempts cer tain employment information from dissemination in response to a request for public records under the Public Records Act (PRA), c hapter 

### FILED DECEMBER 11 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 35555

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Sheats v. City of East Wenatchee

2 42.56 RCW. We hold that polygraph reports taken by peace officers as part of a pre

employment screening qualify as “othe r related materials submitted with respect to an applicant,” so that such reports are exempt under RCW 42.56.250(2)

. But when an agency elects to disseminate exempt records in response to a PRA request, a person seeking to enjoin dissemination has a heav y burden, which includes establishing that dis semination of the record would clearly not be in the public interest. RCW 43.101.095(2)(a), which requires rigorous screening of peace officers to determine their suitability for employment , evinces clear pub lic policy that peace officers be law abiding persons . Here, Officer Sheats’s redacted polygraph report discloses numerous instances of theft and dishonesty . Because the public has an interest in knowing whether a particular officer is law abiding, the p ublic has an interest in viewing Officer Sheats’s redacted report

. We affirm the trial court’s decision generally denying Officer Sheats’s motion for a permanent injunction. FACTS Officer Sheats works as a police officer for the East W enatchee p olice d ep artment in Douglas County

. In 2016, he applied for an opening a t the Wenatchee p olice d epartment in Chelan County . As part of the application process, he submitted to aNo. 35555

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3 polygraph test

. During the test, Officer Sheats admitted to numerous wrongdoings bet ween 2000 and 2016, including several i ncidents of theft and dishonesty

. On June 2, 2017 , and p ursuant to the requirement of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), Wenatchee Assistant City Attorney Danielle Marchant wrote a letter to defense counsel in a case where Officer Sheats was identified as a prosecution witness. The letter disclosed Officer Sheats’s admitted wrongdoings as potential impeachment material

. Soon after, Ms. Marchant notified the Do uglas County
p rosec uting a ttorney’s o ffice of the potential impeachment material and attached a copy of the letter she had written to defense counsel

. Douglas County Prosecuting Attorney Steve n Clem requested from Ms. Marchant a copy of Officer Sheats’s polygraph report. C iting PRA exemptions, Ms. Marchant declined to produce the report. Officer Sheats was a named prosecution witness in a Douglas County criminal

case. Mr. Clem filed a motion in that case to obtain a copy of the polygraph r eport from the c ity of Wenatchee. In a letter to Ms. Mar chant, Mr. Clem explained he needed the report to comply with his obligation under Brady to disclose potential impeachment material to defense counsel. The State provided the c ity of Wenatchee and Officer Sheats notice of its motio n . The c ity of Wenatchee did not oppose the motion. Officer SheatsNo. 35555

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4 did not file any response

. T he Douglas County Superior Court issued a n order directing the c ity of Wenatchee to provide a copy of Officer Sheats’s polygraph report

. Ms. Marchant complie d with the order and provided the Douglas County
p rosecutor’s o ffice with a copy of the polygraph report. That same day, Mr. Clem provided a redacted copy of the report to the East Wenatchee p olice d epartment and to the East Wenatchee c ity a ttorney. Soon after , the Douglas County p rosecuting a ttorney’s office provided the same redacted report to all criminal defense attorneys who had a pending case with Officer Sheats identified as a prosecution witness. On July 17, 2017, a reporter for the Wenatchee Worl d made a PRA request to the

c ity of East Wenatchee seeking “ ‘ [a]ll disciplinary records, citizen complaints and ethics complaints pertaining to East Wenatchee Officer Tye Sheats. ’ ” Clerk’s Papers ( CP ) at 4. The city informed Officer Sheats that it would release the redacted report unless it received an injunction before July 27, 2017. 1
PROCEDURE BELOW On July 26, 2017, Officer Sheats , through counsel, filed an action in Douglas County Superior Court to enjoin the respondent cities and counties from rele asing , and

1 We note that Officer Sheats’s polygraph report is not within the scope of the newspaper’s PRA request.No. 35555

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Sheats v. City of East Wenatchee

5 the respondent newspaper from obtaining , his polygraph report

. Officer Sheats did not file a summons and complaint . Instead, he filed a six

- page pleading comprised of three parts. The first part was an ex parte motion requesting a temporary restraining order ( TRO ) and an eventual permanent injuncti on . The second part was a declaration of facts setting forth much of the information contained above. The third part was a memorandum of authorities citing and quoting several relevant statutes in support of his ultimate request for a permanent injuncti on . That afternoon, Officer She a ts presented his ex parte motion to the court and the court issued a TRO . The order enjoined the respondent cities and counties from disclosing the polygraph report a nd enjoined the Wenatchee World from obtaining the report. The court set a hearing for 8 :00 a.m. on August 14, 2017 , for argument related to the request for the permanent injunction

. On July 2 8, a process server served the initial pleading and order on Mr . Clem

. Mr. Clem wa s not authorized to accept service on behalf of Douglas County. There is no evidence that Officer Sheats served any one other than Mr. Clem with the initial pleadings or order. Also on July 28, Douglas County filed a motion to dissolv e the TRO and noted its motion for August 1

. There were multiple bases for the motion, including improperNo. 35555

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6 service of the initial pleadings and order. Douglas County did not allege lack of subject matter or personal jurisdiction. At the August 1 hearing , Mr. Clem’s substantive objection with the TRO was its

over breadth : it prevented Douglas County from complying with its obligation to disclose Brady material to defense counsel in cases where Officer Sheats was listed as a prosecution witness . In respons e to the trial court’s comments, the parties expressed optimism that they could agree to a narrower TRO. On August 2 , Mr. Clem obtained signatures from all parties on an amended TRO, and the court signed the amended TRO

. The amended TRO permitted the res pondent cities and counties to disclose Brady material to defense counsel in cases where Officer Sheats was listed as a prosecution witness. All parties except Chelan County filed briefs prior to the August 14 hearing. Although all parties provided substa ntive arguments in their briefs, only the c ity of East Wenatchee and the c ity of Wenatchee included procedural arguments in their briefs. Those briefs were filed two business days before the August 14 hearing.
B oth cities argued that Officer Sheats had no t properly commenced the action. The c ity of East Wenatchee cited CR 3 and argued that Officer Sheats’s failure to file a complaint or serve a summons meant he had “not actually commenced a lawsuit, [andNo. 35555

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7 the] Court [should] dismiss his motion.” C lerks Pa pers (C P ) at 127. Other than citing CR 3, the c ity of East Wenatchee did not provide any additional authority or argument for its position. Specifically, it did not mention or discuss lack of subject matter or lack of personal jurisdiction. The c ity o f Wenatchee cited RCW 4.28.020 and argued that because Officer Sheats had “failed to file a summons and complaint , [the] C ourt ha[d] not yet acquired jurisdiction over this matter or the parties.” CP at 92. Other than citing to the statute, the

c ity of W enatchee did not provide any additional authority or argument for its position. Officer Sheats did not respond to the late procedural arguments. Nor did the parties discuss personal jurisdiction at the August 14 hearing. In a written decision, t he tria l court determined that Brady required the disclosure of the redacted polygraph report to defense attorneys who had cases where Officer Sheats was listed as a prosecution witness. The court also determined that because the redacted report was required to be disclosed under Brady , it could be disseminated to persons making a PRA request

. Officer Sheats appealed , assigning error to the court’s findings that the redacted report be disclosed under Brady and that it be disclosed under the PRA.No. 35555

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Sheats v. City of East Wenatchee

8 ANALYSIS 2
A. P ROCEDURAL CHALLENGES BY RESPONDENT CITIE S 1. S ubject matter juri s diction The c ity of Wenatchee argues that Officer Sheats did not properly commence the
matter in accordance with RCW 4.28.020. It argues that this failure prevented the trial court fro m acquiring subject matter jurisdiction. Unfortunately, the city offers no additional authority or argument on this claim. An appellate court may decline to address an issue that is insufficiently briefed or argued. RAP 10.3(a)(6); Scott ’ s Excavating V ancouver, LLC v. Winlock Prop

. , LLC , 176 Wn. App. 335, 348, 308 P.3d 791 (2013) (“We decline to address arguments unsupported by citation to authority or argument.”). We address the issue nonetheless because “[w]henever it appears by suggestion of the par ties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” CR 12(h)(3).

2 Respondent Chelan County did not fil e a response brief and join ed r espondent Douglas County in its response brief. Letter from Prosecuting Attorney Douglas Shae to Renee Towns l ey, Clerk of Court, Wash. Ct. App. Div. III, (Mar. 23, 2018) , Sheats v. City of East Wenatchee , No. 35555

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. Respondent Wenatchee World newspaper did not file a brief and joined the other respondents in their response briefs. Letter from Erin McCool, Ogden Murphy Wallace to Renee Townsley, Clerk of Court, Wash. Ct. App. Div

. III, (Apr. 6, 2018), Sheats v. City of East Wenatchee , No. 35555

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Sheats v. City of East Wenatchee

9 We review questions of subject matter jurisdiction de novo. Dougherty v. Dep’t of Labor & Indus. , 150 Wn.2d 310, 314, 76 P.3d 11 83 (2003). In Marley v. Department of Labor & Indus tries , 125 Wn.2d 533, 539, 886 P.2d 189 (1994), the Washington Supreme Court clarified what it means for a trial court to have s ubject matter jurisdiction :

Section 11 of the Restatement [(Second) of Judg ments (1982) ] defines subject matter jurisdiction: “A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.” (Italics ours.) We italicize the phrase “type of contro versy” to emphasize its importance. A court or agency does not lack subject matter jurisdiction solely because it may lack authority to enter a given order.

. . . . A tribunal lacks subject matter jurisdiction when it attempts to decide a type of cont roversy over which it has no authority to adjudicate. [T]he focus must be on the words “type of controversy.” If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction. Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse , 1988 B.Y.U. L

. R EV . 1, 28. In Washington, our superior courts are courts of general jurisdiction and have the authority to hear and deci de cases in equity and all cases at law for which jurisdiction has not been vested by law in some other court. W ASH
. C ONST
. a rt. IV , § 6. Unquestionably, the trial court here had subject matter jurisdiction to construe the PRA and to issue or decline to issue an injunction. But our inquiry does not end here

.No. 35555

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Sheats v. City of East Wenatchee

10 “It is axiomatic that a judicial power vested in courts by the constitution may not be abrogated by statute.” James v. Kitsap County , 154 Wn.2d 574, 588, 115 P.3d 286 (2005). “ However, . . . w here statutes prescribe procedures for the resolution of a particular type of dispute, state courts have required substantial compliance or satisfaction of the spirit of the procedural requirements before they will exercise jurisdiction over the matter.” Id. Here, RCW 4.28.020 is a statute that prescribes procedures be for e a trial court acquire s jurisdiction over a civil action. It provides: From the time of the commencement of the action by service of summons, or by the filing of a complaint , or as otherwis e provided, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings. RCW 4.28.020 (e mphasis added)

. The question then becomes whether Officer Sheats substantially complied with the procedural requirements of RCW 4.28.020. “Substantial compliance has been defined as actual compliance in respect to the substance essential to every reasonable objective of the statute. It means a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was adopted.”
James , 154 Wn.2d at 588 (quoting In re Habeas Corpus of Santore , 28 Wn. App. 319, 327, 623 P.2d 702 (1981) (citation omitted) )

.No. 35555

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Sheats v. City of East Wenatchee

11 Here, Officer Sheats substantially complied with RCW 4.28.020’s re quirement to file a complaint. The objectives of a complaint are “(1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems the pleader is entitled.” CR 8(a). The initial pleading filed by Officer Sheats contained a declaration setting for th the claimed facts and a memorandum explaining the legal bases for the relief he requested. Because the pleading achieves every reasonable objective of a compla int, we conclude that Officer Sheats’s initial pleading substantially complied with RCW 4.28.020’s requirement that a complaint
be filed. See Schlesinger v. Councilman , 420 U.S. 738, 742 n.5 , 95 S. Ct. 1 3 00, 43 L. Ed. 2d 591 (1975) ( “[ P ] apers filed by Cou ncilman

— motions for a temporary restraining order and a preliminary injunction, and supporting affidavit and briefs

— although not formally denominated a complaint, were adequate to apprise petitioners of the nature of the claim and the relief sought and to invoke the jurisdiction of the court .” ).

2. Personal jurisdiction The cities of Wenatchee and East Wenatchee both argue that Officer Sheats’s
failure to file a complaint and serve them process causes the court to lack personal jurisdiction over them.No. 35555

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Sheats v. City of East Wenatchee

12 Whether a court has personal jurisdiction over a defendant is a question of law reviewed de novo. Lewis v. Bours , 119 Wn.2d 667, 669, 835 P.2d 221 (1992). Proper s ervice of a summons and complaint is a prerequisite to the court obtaining jurisdiction o ver a party

. S tre e ter

- Dybdahl v. Nguyet Huynh , 157 Wn. App. 408, 412, 236 P.3d 986 (2010) ; Woodruff v. Spence , 76 Wn. App. 207, 209, 883 P.2d 936 (1994); Lee v.
W

. Processing Co. , 35 Wn. App. 466, 469, 667 P.2d 638 (1983)

. Officer Sheats failed to
proper ly serve any party with a summons and complaint

. Officer Sheats argues that the c ities waived their objection to lack of personal jurisdiction. CR 12(h)(1) provides in relevant part : A defense of lack of jurisdiction over the person, improper venue, ins ufficiency of process, or insufficiency of service of process is waived

. . . if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof . . .

. T he city of East Wenatchee never asserted lack of personal jurisdiction. It , therefore , waived its jurisdictional defense

. The c ity of Wenatchee did assert the def ense. But the assertion was a one sentence statement contained in a n 9

- page brief filed two business days before the hearing on the merits

. We must d ecide whether this assertion was sufficient under CR 12(h)(1).
In Sanders v. Sanders , 63 Wn.2d 709, 388 P.2d 942 (1964) , the wife filed a divorce action against her husband, who had recently moved from Washington State toNo. 35555

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13 South Carolina. Id. at 711. An a ttorney who previously represented the husband when he lived in Washington specially appeared to protect the husband’s interests. Id. That attorney later brought a motion to change venue, but did not then or later move to dismiss for lack of personal jur isdiction. Id. at 7 14. On appeal, the court discussed whether a special appearance was sufficient under CR 12(h)(1) to apprise the trial court of the jurisdictional challenge: To constitute a motion challenging jurisdiction the statement must be clear en ough both to inform the trial judge as to the nature of the issue and to ask for an immediate ruling on it. While the bare statement that the attorney is there on a special appearance may serve to inform the judge of jurisdictional problems, it in no way requests an immediate ruling, and there is no opportunity for objection thereto or for noting same for purposes of the record. Id. at 7 15. Here, the jurisdic tional challenge raised in the c ity of Wenatchee’s brief arguably informed the trial court of t he jurisdictional challenge . But the filing, which occurred only two business days prior to the hearing on the merits, did not afford Officer Sheats sufficient opportunity to object and to respond to the issue. We , therefo re , conclude that the c ity of We natchee waived its personal jurisdictional challenge.No. 35555

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14

3. Premature appeal Both cities argue that the appeal is premature because it was filed after the trial court issued its written decision but prior to entry of a final judgment.
RAP 2.2 (a)(3) perm its appellate review of a written decision that affects a substantial right in a civil case if the decision in effect determines and discontinues the action. Here, the parties submitted the case on briefs and declara tions. There were no witnesses nor wer e there any genuine issues of material fact. Similar to a summary judgment motion, here there was no need for formal findings of fact and conclusions of law. The trial court’s decision determined that Officer Sheats was not entit led to his requested inju nction and there was nothing left to determine. Under these circumstances, the written decision was appealable. See Backlund v. Univ

. of Wash

. , 137 Wn.2d 651, 656 n.1, 975 P.2d 950 (1999) (Failure to enter findings and conclusions following a memorandum decision will not preclude appellate review in an appropriate case

. ).
B. S UBSTANTIVE CHALLENGE S BY O FFICER S HEATS 1. Disclosure of redacted polygraph report as Brady material On appeal, Officer Sheats acknowledges that the redacted polygraph report m ust be disclosed in certain criminal cases . H e argues that disclosure is limited only to those criminal cases where “there is a reasonable probability that, had the evidence beenNo. 35555

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15 disclosed to the defense, the result of the proceeding s would have been differen t.” Br. of Appellant at 11. We disagree. A prosecutor has a constitutional duty to disclose both exculpatory evidence and impeachment evidence favorable to a criminal defendant. Brady , 373 U.S. at 87 (p rosecutor’s failure to disclose evidence favorable to an accused violate s due process) ;

s ee also United States v. Bagley , 473 U.S. 667, 678

- 84, 105 S. Ct. 3375, 87 L. Ed 2d 481 (1985) (Failure to disclose evidence that could have been used to impeach a government witness violates due process

. ). This const itutional duty to disclose exists even if the governmental record is exempt from disclosure under a state statute. See Pennsylvania v. Ritch i e , 480 U.S. 39, 57 , 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). Therefore , even if Officer Sheats’s polygraph rep ort is exempt from dissemination under the PRA, the respondent cit ies and counties are required to disclose it to defense counsel in cases where the polygraph report would qualify as exculpatory evidence o r impeachment evidence favorable to the criminal de fendant

.

2. Enjoining d is semination of redacted police report to persons making a PRA request Officer Sheats argues that the trial court erred when it refused to enjoin di ssemination of his redacted polygraph report to persons making a PRA request . H e argues the report is exempt from dissemination

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Sheats v. City of East Wenatchee

16 Whether a particular exemption of the PRA applies is a question of law that we review de novo. Resident Action Council v. Seattle Hous

. Auth. , 177 Wn.2d 417, 428, 327 P.3d 600 (2013) (citing RCW 42.56.550 (3); Progressive Animal Welfare Soc’y v. Univ. of Wash. , 125 Wn.2d 243, 271, 884 P.2d 592 (1994)). “Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such exam ination may cause inconvenience or embarrassment to public officials or others.” RCW 42.56.550(3). Courts should construe exemptions to the PRA narrowly to allow the PRA’s purpose of open government to prevail when possible. Ameriquest Mortg. Co. v. Off ice of Att’y Gen. , 177 Wn.2 d 467, 487, 300 P.3d 799 (2013) (citing RCW 42.56.030 )

. The party attempting to prevent dis semination of the public record has the burden of proving that the exemption applies. Ameriquest , 177 Wn.2d at 486

- 87. Officer Sheats argues that RCW 42.56.250(2) exempts dis semination of a pre employment polygraph report. We agree. RCW 42.56.250 provides in relevant part: The following employment and licensing information is exempt from public inspection and copying under this chapte r:

. . . . (2) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant

. (Emphasis added.)No. 35555

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17 Any law enforcement officer who receives a conditional offer of emp loyment must submit to a background investigation (including a check of criminal history), a psychological examination, and a polygraph test. RCW 43.101.095(2)(a). The purpose of these requirements is “to determine the applicant’s suitability for employm ent. ” Id. The results of the polygraph test are part of the materials submitted with respect to the applicant. Even construing RCW 42.56.250(2) narrowly , we conclude that the exemption applies here.
R espondent s counter that the exempt status of a rec ord is not dispositive of whether dissemination should be enjoined. We agree. “[F]inding [that] an exemption applies under the PRA does not ipso facto support issuing an injunction.” Lyft, Inc. v. City of Seattle , 190 Wn.2d 769, 786, 418 P.3d 102 ( 2018). In order to enjoin dissemination of an exempt record, the party attempting to prevent dissemination must show that “disclosure would clearly not be in the public interest, and would substantially and irreparably damage any person or would substanti ally and irreparably damage vital government functions.” Id. at 785 (citing RCW 42.56.540). Officer Sheats’s redacted polygraph report contains numerous admissions of theft and dishonesty. Washington public policy favors hiring and retaining law abidi ng peaceNo. 35555

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18 officers

. This policy is legislatively recognized in RCW 43.101.095’s requirement that
peace officers submit to a background check (including a check of criminal history), a psychological evaluation, and a polygraph test to determine their suitab ility for employment. The public has an interest in knowing if a current p eace officer is a law abiding person

. 3 Officer Sheats is unable to establish that dis semination of his redacted polygraph report would clearly not be in the public’s interest. We conclude that the trial court correctly denied Officer Sheats’s request for a permanent injunction.

3. D issemination would not violate right to privacy Officer Sheats claims that his right to privacy under RCW 42.56.050 would be violated by the publi c dis semination of his redacted polygraph report. We disagree. RCW 42.56.050 provides that an individual’s right to pr ivacy is violated if (1) the disclosure would be highly offensive to a reasonable person, and (2) disclosure of the record is not a matt er of legitimate public concern. As noted above, Officer Sheats
cannot satisfy the second prong.

3 An agency need not disseminate exempt record s of a ll officer misconduct

. A n isolated minor incident, or even a series of incidents before becoming an officer , is not necessarily indica tive of present character. When choosing whether to disseminate an exempt record , the agency should ask whether a reasonable person would consider the record probative of the officer’s present character.No. 35555

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Sheats v. City of East Wenatchee

19 C. A TTORNEY FEES The cities request an award of reasonable attorney fees.
1. The c ity of Wenatchee The c ity of Wenatchee seeks attorney fees for its effor ts for procuring the dismissal of the TRO at the trial court. It cites Cecil v. Dominy , 69 Wn.2d 289, 418 P.2d 233 (1966). In Washington, attorney fees are not available as costs or damages absent a contract, statute, or recognized ground in equity. Ci ty of Seattle v. McCready , 131 Wn.2d 266, 273

- 74 , 931 P.2d 156 (1997). The court in Cecil held that attorney fees are recoverable in an action where a trial on the merits has for its sole purpose the determination of whether an injunction should be dissol ved, the injunction is dissolved, and a trial was the sole procedure available to the party attempting to dissolve the temporary injunction. 6 9 Wn.2d at 293. The rationale for this equitable remedy is that the only action to be taken by the enjoined part y is legal action to dissolve the injunction and a wrongfully enjoined party should be awarded damages. McCready , 131 Wn.2d at
278 (citing Cecil , 69 Wn.2d at 291

- 92). Officer Sheats responds that the c ity of Wenatchee did not request attorney fees at the trial court level and , therefore , waived its right to recover fees. We agree.No. 35555

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Sheats v. City of East Wenatchee

20 In general, an argument not raised in the trial court is waived on appeal. RAP 2.5(a). “While an appellate court retains the discretion to consider an issue raised for the first time on appeal, such discretion is rarely exercised.” Karlberg v. Otten , 167 Wn. App. 522, 531, 280 P.3d 1123 (2012) (citing Smith v. Shannon , 100 Wn.2d 26, 38, 666 P.2d 351 (1983) ) . We decline to review this unpreserved claim of error.

2. The c it

y of East Wenatchee The c ity of East Wenatchee requests attorney fees and costs under RAP 18.1, RAP 14.3, and RAP 18.9(a). RAP 18.1 sets forth the requirements to request attorney fees when such fees are permitted by applicable law. East Wenatchee has no t cited to an applicable law t hat entitles it to attorney fees in responding to this appeal

. RAP 14.3 provides for the recovery of certain expenses to the prevailing party. The respondent cities and count ies have su bstantially prevailed on appeal and ar e entitled to recover allowable costs. We defer a decision on such an award to our commissioner or clerk. RAP 18.9(a) permits this court to award a prevailing party reasonable attorney fees for responding to a frivolous appeal. An appeal is frivolous if there are no debatable issues on which reasonable minds might differ. Kinney v. Cook , 150 Wn. App. 187, 195,No. 35555-1-111 Sheats v. City of East Wenatchee

208 P .3d 1 (2009). Here, we agreed with Officer Sheats that the lower court had subject

matter jurisdiction, that the parties waived their defense of lack of personal jurisdiction,
and that his polygraph report was exempt from disclosure under RCW 42.56.250(2). His appeal, therefore, was not frivolous.
Affirmed.



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# ~w..\1 · c..} Lawrence-Berrey, C.J.

WE CONCUR:

Siddoway, J.

21