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: