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Dolan v. King County

Pierce County Superior Court

Civil Case No. 06-2-04611-6

King County Public Defenders Denied Pension Benefits

In Washington State it is a mandated government service for counties to provide legal defense to indigent persons for whom the right to counsel is constitutionally required.  King County previously provided indigent legal defense services through contracts with the Associated Counsel for the Accused (ACA) and other non-profit agencies such as TDA, SCRAP and NDA.

Kevin Dolan was a lawyer paid through ACA to perform indigent defense services for King County.  He was entitled to membership and benefits in the Public Employees Retirement System (PERS), but King County failed to report him and others to the Department of Retirement Systems (DRS) and failed to make retirement contributions to DRS.

The Supreme Court agreed with plaintiffs on August 18, 2011.  The Supreme Court held that "the employees of the defender organizations are employees of the county for the purposes of PERS."  172 Wn.2d at 320.  Read the Supreme Court's Opinion in the Case Documents section below.

Case History

During the 1980's the King County public defenders sought to obtain parity with King County prosecutors.  Following a study initiated by King County, King County decided expressly in 1989 to provide public defenders with the same pay as prosecutors.  But King County did not agree to provide benefits parity.  Thus, the King County public defenders and staff did not have the same employee benefits, particularly retirement benefits, that their counterparts in the Prosecutor's office received.  Over the years the King County public defenders tried to obtain, for themselves and the public defense staff, employee benefits including retirement benefits, that were the same as King County employees.  King County continually refused to provide these benefits.

Kevin Dolan thought this was unfair.  He contacted David Stobaugh and Steve Strong of Bendich, Stobaugh & Strong to determine whether the public defenders and staff had a viable claim.  Our firm thoroughly investigated Dolan's claim for more than two years using the Public Records Act to obtain thousands of pages of King County documents showing County control of the public defense agencies.  They determined that Dolan had a viable claim for PERS retirement benefits.

Thus, in January 2006, Kevin Dolan's class action lawsuit was filed against King County on behalf of the lawyers and the staff of the King County public defense agencies.  The complaint alleged that King County breached its duty to enroll the lawyers and staff of the King County public defense agencies in the Public Employees Retirement System (PERS) and that King County failed to pay required PERS contributions to the Department of Retirement Systems (DRS).

King County denied liability and denied that plaintiffs were due any relief.  King County asserted that it had no obligation to enroll the lawyers and staff of the King County public defense agencies in PERS or to make contributions to PERS on their behalf because the lawyers and staff of the King County public defense agencies were not employees of King County and were instead employees of those non-profit corporations that provided public defense services as independent contractors to King County.  King County also asserted a counterclaim, which sought reimbursement from the Plaintiff and the members of the Class for monetary contributions that King County might have to pay to PERS on their behalf due to the litigation, if the case were successful.  King County also raised a statute of limitations defense.

The Court, the Honorable John R. Hickman, decided that the case would be addressed in three phases: (1) class certification, (2) liability, and (3) relief, if necessary.

Dolan moved to certify the class as a mandatory injunctive class action under Civil Rule 23(b) (1) and (2) and the Court certified the class.  After the class was certified, King County sought a summary judgment ruling that even if plaintiffs' claims were successful, the statute of limitations would limit their claim for retroactive PERS service to three years from the date of filing the complaint.  The complaint was filed on January 24, 2006 and thus under King County's motion the class could not obtain relief for service in any time period before January 24, 2003.  Plaintiffs opposed King County's motion, arguing that the statute of limitations does not begin to run until a class member's retirement.  The Court denied King County's motion on the statute of limitations.  The Court said it was premature to decide the issue at that point and reserved ruling on the statute of limitations until after the liability was decided.

After extensive discovery and numerous depositions, the parties moved for summary judgment on liability.  The Court denied the cross-motions for summary judgment because the material facts were in dispute.  After the summary judgment motions were denied, the parties requested that the Court try the case on the written summary judgment record.  The Court agreed and the Dolan case was tried before the Court in November 2008.

After the trial and the Court's review of the extensive record, the Court issued a lengthy written decision in favor of the class on liability and the Court later issued findings of fact and conclusions of law and a permanent injunction requiring King County to enroll currently employed class members in PERS.  (Copies of these can be found in Case Documents above.)  The Court stayed the injunction while King County appealed.

The Washington Supreme Court agreed to hear King County's appeal.  In August 2011, the Supreme Court issued its decision affirming the Court's decision on liability.  Dolan v. King County, 172 Wn.2d 299 (2011).  The Supreme Court's decision was 5 to 4.  (A copy of the decision can be found in Case Documents above.)

The Supreme Court held that King County "[had] exerted such a right of control over the defender organizations as to make them agencies of the county ... and that under Washington common law as adopted in RCW 41.40.010(12), the employees of the defender organizations are employees of the county for purposes of PERS."

King County moved for reconsideration.  The State of Washington, the Washington State Legislature, the Washington State Association of Counties, the Washington State Association of County Officials, the Association of Washington Cities, and the Washington State Association of Municipal Attorneys joined King County in asking for reconsideration.  In its reconsideration motion, King County said that if reconsideration was not granted, the King County public defenders and staff would be King County employees for other purposes because the test is the same as used for PERS:
          "Moreover, this Court's decision has additional consequences not considered by this Court.  If the
           employees of the public defender corporations are County employees for purposes of public
           pensions, there is no reason to doubt that these individuals will also be employees for purposes of
           unemployment compensation, industrial insurance, health care insurance, state and local taxation,
           wages and hours legislation and many other situations not yet contemplated by this
           Court." 
(Emphasis added.)

Plaintiffs opposed reconsideration.  The Supreme Court denied reconsideration and sent the case back to the Court in February, 2012.

After the Washington Supreme Court sent the case back to the Pierce County Superior Court, plaintiffs learned of potential legislation that could possibly negate the Supreme Court's decision.  Bendich, Stobaugh & Strong hired a lobbyist and engaged in lobbying in Olympia, Washington to protect the class.  Plaintiffs successfully obtained express language in the bill exempting the Dolan case from whatever effect the legislation might otherwise have on their pension rights.  In April 2012, the parties signed a stipulation that the legislation would not be used as a defense in this action, and the Court approved the stipulation and made it a court order.

Upon plaintiffs' motion the Court modified its permanent injunction and required King County to commence enrolling current King County public defense employees in PERS and to start making PERS contributions on their behalf.

After the Court modified its permanent injunction, the parties engaged in settlement negotiations, and a preliminary settlement agreement was approved by the Pierce County Superior Court in 2013.  Following the preliminary approval of settlement, the Department of Retirement Systems moved to intervene.  The Court denied this motion, allowing DRS only partial intervention.  DRS appealed, arguing that the superior court erred in approving a settlement binding upon DRS when DRS was not a party to the case.  The Court of Appeals affirmed, granting DRS full party status and reversing the approved settlement.

A final settlement agreement was reached with both King County and DRS.  On remand from the Court of Appeals, the Pierce County Superior Court entered an Order Modifying Permanent Injunction on June 5, 2015, constituting final judgment in accordance with CR54(b).  King County and DRS agreed to the entry of that order. 

Class members were awarded PERS service credit retroactive to 1978, and King County paid DRS the contributions attributable to that retroactive service, both employer's and employees'.  

Class
Members

Pierce County Superior Court Judge John R. Hickman certified the following class:

"All W-2 employees of the King County public defender agencies and any former or predecessor King County public defender agencies who work or have worked for one of the King County public defender agencies within three years of the filing of this lawsuit [i.e., back to January 24, 2003];


and

All W-2 employees of the King County public defender agencies and any former or predecessor King County public defender agencies who have not worked for one of the King County public defender agencies within three years of the filing of this lawsuit, but who work or have worked in a PERS-eligible position within three years of the filing of this lawsuit [i.e. back in January 24, 2003]."

The lawsuit was filed on January 24, 2006 and accordingly the time period covered by the class definition is January 24, 2003 to July 1, 2013 (Settlement Agreement, paragraph 54).  To be a class member one must be employed by one of the King County public defense agencies - TDA, ACA, SCRAP, or NDA - during that time period or, alternatively, one must be a former King County public defense employee (lawyer or staff) who left one of the agencies at any time before January 24, 2003, but who was in a PERS-eligible position at any time from January 24, 2003 to July 1, 2013.

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