author: González, J. MADSEN, J. (dissenting)

text:
    Christopher H. FLOETING, Respondent, v. GROUP HEALTH COOPERATIVE, Petitioner.
    No. 95205-1
    Supreme Court of Washington.
    Filed JANUARY 31, 2019 Oral Argument Date: June 28, 2018
    Medora Marisseau, Celeste Mountain Monroe, Karr Tuttle Campbell, 701 5th Ave. Ste. 3300, Seattle, WA, 98104-7055, for Petitioner.
    Hank L. Balson, Budge & Heipt, PLLC, 705 2nd Ave. Ste. 910, Seattle, WA, 98104-1716, for Respondent.
    Annika Michelle Scharosch, Eastern Washington University, 211 Tawanka, Cheney, WA, 99004, Aileen B. Miller, WA Attorney General's Office, EDU, Po Box 40100, Olympia, WA, 98504-0100, Education Division A.G. Office, Attorney at Law, 1125 Washington Street Se, P. O. Box 40100, Olympia, WA, 98504-0100, for Amici Curiae on behalf of University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College.
    Patricio Antonio Marquez, Washington Attorney General's Office, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Amicus Curiae on behalf of Attorney General of Washington.
    Lindsay L. Halm, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, Sara Lyle Ainsworth, SIA Legal Team, Po Box 1019, Amherst, MA, 01004-1019, Andrew J.D. Kashyap, Attorney at Law, 1226 8th Pl W., Seattle, WA, 98119-3443, Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amici Curiae on behalf of Legal Voice, Fred T. Korematsu Center for Law and Equality.
   González, J.

¶ 1 The Washington Law Against Discrimination (WLAD) makes it unlawful for "any person or the person's agent or employee to commit an act [of] discrimination ... in any place of public ... accommodation." RCW 49.60.215. Christopher Floeting alleges that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment. Sexual harassment is a form of sex discrimination. Group Health argues that we should import workplace sexual harassment doctrines into the public accommodations context, categorically limiting employer liability. We decline to do so and affirm.

BACKGROUND

¶ 2 Floeting had been a member and patient of Group Health, a nonprofit health care system, for over 35 years. Group Health is a place of public accommodation. Floeting alleges that beginning in July 2012, he was repeatedly sexually harassed by a Group Health employee during his regularly scheduled medical appointments. He filed a complaint with Group Health, and Group Health investigated. Two weeks later, Group Health terminated the employee.

¶ 3 Floeting sued Group Health for the unwelcome and offensive sexual conduct he experienced. The trial court dismissed his claim on summary judgment, presumably pursuant to Group Health's argument that the employment discrimination standard applies. The Court of Appeals reversed. Floeting v. Grp. Health Coop., 200 Wash. App. 758, 403 P.3d 559 (2017). We granted review. Floeting v. Grp. Health Coop., 190 Wash.2d 1007, 409 P.3d 1063 (2018).

ANALYSIS

¶ 4 Group Health challenges employer liability for the discriminatory actions of its agents and employees and challenges the legal test used by the Court of Appeals. We decline to import doctrines developed for the employment context into the public accommodations context. We hold that under the plain language of WLAD, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.

¶ 5 Since both of Group Health's challenges present questions of law, our review is de novo. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 239, 59 P.3d 655 (2002) (citing State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001) ). When reviewing a statute, the court will give effect to the statute's plain language. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). In determining if the statute is plain, we will consider the ordinary meaning of words, basic rules of grammar, and statutory context. Citizens All. for Prop. Rights Legal Fund v. San Juan County , 184 Wash.2d 428, 435, 359 P.3d 753 (2015).

¶ 6 The legislature has declared "that practices of discrimination ... threaten[ ] not only the rights and proper privileges of [Washington's] inhabitants but menace[ ] the institutions and foundation of a free democratic state." RCW 49.60.010. The legislature has also directed us to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation. RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv.Dist.-ESD 171, 189 Wash.2d 607, 614, 404 P.3d 504 (2017) (quoting Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996) ).

¶ 7 Under RCW 49.60.030(l)(b), WLAD secures the right to "full enjoyment" of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation "without acts directly or indirectly causing persons of [a protected class]

to be treated as not welcome, accepted, desired, or solicited." See RCW 49.60.040(14). Similarly, WLAD prohibits "any person or the person's agent or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination" based on a person's membership in a protected class. RCW 49.60.215 (emphasis added). This broad standard focuses the liability inquiry on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.

¶ 8 Floeting alleges a Group Health employee sexually harassed him. Sexual harassment is a form of sex discrimination, which we analyze like other forms of discrimination in places of public accommodation. See Dana E. Blackman, Refusal To Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination? , 14 MICH. J. GENDER & L. 59, 72 (2007) ("absent distinguishing factors, the various protected classes should be treated similarly under the law"); cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

¶ 9 More than twenty years ago, we set forth the standard for establishing a prima facie case of discrimination in a place of public accommodation under RCW 49.60.215. See Fell v. Spokane Transit Auth., 128 Wash.2d 618, 637, 911 P.2d 1319 (1996). Fell established that in order to make a prima facie case of discrimination under RCW 49.60.215, a plaintiff must prove that (1) the plaintiff is a member of a protected class, (2) the defendant's establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and (4) the plaintiff's protected status was a substantial factor that caused the discrimination. Id. ; see also Demelash v. Ross Stores, Inc., 105 Wash. App. 508, 525, 20 P.3d 447 (2001) (applying same analytical framework). In all the time since, the legislature has not seen fit to amend WLAD to impose a different standard on claims of discrimination in places of public accommodation.

¶ 10 Instead of the traditional public accommodation claims test, Group Health argues that the framework developed to analyze sex discrimination committed by an employee against a coworker should apply. In the employment context, a plaintiff alleging workplace sexual harassment must show (1) the conduct was unwelcome, (2) the conduct was because of sex, (3) the conduct affected the terms or conditions of employment, and (4) the harassment can be imputed to the employer because the employer (i) authorized, knew of, or should have known of the harassment and (ii) failed to take reasonably prompt and corrective action. Glasgow v. Ga.-Pac. Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985) (holding sexual harassment deprived plaintiff of a workplace free of sex discrimination).

¶ 11 Group Health argues that the Glasgow employment discrimination standard "applies seamlessly" and therefore it should apply. Pet. for Review at 10. It also suggests that if we do not apply the agency principles articulated in Glasgow, we would be creating a "double standard" whereby sexual harassment claims are treated differently in different contexts. Id. at 14-15. Group Health also argues that the Court of Appeals incorrectly imposed a standard that rejects consideration of severity or pervasiveness of the treatment. Id. at 15.

¶ 12 But we treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently. An employee alleging employment discrimination must show that the misconduct affected the "terms or conditions of [their] employment." RCW 49.60.180(3) ; Glasgow, 103 Wash.2d at 405-06, 693 P.2d 708. The employment discrimination statute is limited to unfair practices by an "employer" by operation of the language "It is an unfair practice for any employer[ ] [t]o ..." RCW 49.60.180. In contrast, WLAD provisions prohibiting discrimination in a public accommodation do not limit themselves to the "terms or conditions" of a public accommodation. See RCW 49.60.215. Discrimination by "any person or the person's agent or employee" is an unfair practice in a public accommodation, id. ; in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees. RCW 49.60.040(19). Floeting's claim is more of a consumer claim than a claim between an employee and employer, and his claim is not limited by the employment discrimination statute.

¶ 13 WLAD protects the customer's "full enjoyment" of the services and privileges offered in public accommodations. RCW 49.60.030(l)(b). WLAD's broad definition of "full enjoyment" extends beyond denial of service to include liability for mistreatment that makes a person feel "not welcome, accepted, desired, or solicited." RCW 49.60.040(14). Denial or deprivation of services on the basis of one's protected class is an affront to personal dignity. See Obergefell v. Hodges, --- U.S. ----, 135 S.Ct. 2584, 2604, 2607-08, 192 L.Ed.2d 609 (2015) (denial of marriage equality works a "grave and continuing harm"). The "fundamental object" of laws banning discrimination in public accommodations is "to vindicate 'the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.' " Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (quoting S. REP. NO. 88-872, at 16-17 (1964) ).

¶ 14 WLAD makes it unlawful for "any person or the person's agent or employee to commit an act" of, among other things, discrimination in a place of public accommodation. RCW 49.60.215. This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees. We can say it no better than the Court of Appeals:

It is an unfair practice for "any person or the person's agent or employee" to commit a forbidden act. RCW 49.60.215(1). This language attributes responsibility for the agent's or employee's discriminatory act to the "person" (employer) without mention of the doctrines of vicarious liability or respondeat superior. In this way, the legislature chose to fight discrimination in public accommodations by making employers directly responsible for their agents' and employees' conduct.

Floeting, 200 Wash. App. at 770, 403 P.3d 559. Grafting Glasgow's rule imputing liability to an employer only where the employer "authorized, knew, or should have known" of the discriminatory conduct and "failed to take reasonably prompt and adequate corrective action," 103 Wash.2d at 407, 693 P.2d 708, would significantly undermine the legislature's clear language. It is the province of the legislature to establish standards of conduct and attendant rules of liability, and the legislature determined direct liability is appropriate here. See, e.g., United States v. Park, 421 U.S. 658, 672-73, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975) (Congress imposed heightened standard of care on food sellers, even where no awareness of wrongdoing); cf. Anderson v. Pantages Theatre Co., 114 Wash. 24, 29, 194 P. 813 (1921).

¶ 15 Group Health contends that it should not be held liable for "unforeseeable acts of an employee." Suppl. Br. of Pet'r at 16. But RCW 49.60.215 is not a negligence statute where foreseeability matters; it imposes direct liability for discriminatory acts, regardless of the culpability of the actor. Group Health also contends that we should apply a different standard to the acts of frontline employees than we do to supervisors. Nothing in the text of WLAD supports that approach. " '[A] rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.' " Br. of Amici Curiae Legal Voice & Korematsu Center at 11 (quoting Arguello v. Conoco, Inc., 207 F.3d 803, 810 (5th Cir. 2000) ). This would not be consistent with the legislature's express directions.

¶ 16 Group Health suggests we should apply an agency or vicarious liability lens to employer liability for employee conduct under RCW 49.60.215. This would require us to ignore both the plain language of the statute and the larger statutory scheme. The statute makes it unlawful for "any person or the person's agent or employee to commit an act [of] discrimination ... in any place of public ... accommodation." RCW 49.60.215. Of the fourteen "unfair practices" provisions under WLAD, employers are directly liable for the acts of employees in only two instances: (1) the relevant public accommodations provision here and (2) the provision making discrimination against persons with disabilities who use service animals unlawful, RCW 49.60.218. These provisions' direct liability language stands in contrast to the other dozen provisions. See Br. of Amici Curiae Legal Voice & Korematsu Center at 7-8 (collecting statutes). All provisions target "unfair practices" but are defined in a context specific manner. There is no statutory support for the argument that an employer must know about the discrimination or have an opportunity to take corrective action before liability may be imposed. See generally Tafoya v. Human Rights Comm'n, 177 Wash. App. 216, 224, 311 P.3d 70 (2013) (applying Glasgow's employment standard to housing context because the statutes in those contexts were similar).

¶ 17 Group Health also argues that we should adopt Glasgow's "severe" or "pervasive" requirement for sexual harassment claims in places of public accommodation. Suppl Br. of Pet'r at 17. We decline to do so. There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context. See ch. 49.60 RCW. A single discriminatory act in a place of public accommodation may violate WLAD. See, e.g., King v. Greyhound Lines, Inc., 61 Or. App. 197, 199-201, 656 P.2d 349 (1982) (interpreting a provision similar to the WLAD and holding bus company liable for an employee's use of two racial slurs toward a customer); accord Evergreen Sch. Dist. No. 114 v. Wash. State Human Rights Comm'n, 39 Wash. App. 763, 774, 695 P.2d 999 (1985).

¶ 18 We agree with the Court of Appeals when it noted:

To be actionable, the asserted discriminatory conduct must be objectively discriminatory. By this we mean that it must be of a type, or to a degree, that a reasonable person who is a member of the plaintiff's protected class, under the same circumstances, would feel discriminated against (as described in subsections [RCW 49.60].040(14) and .215(1) ). This is an objective standard.

Floeting, 200 Wash. App. at 773-74, 403 P.3d 559 (emphasis added). This is the reasonable person test applied in the public accommodations context. See generally State v. Trey M ., 186 Wash.2d 884, 888, 383 P.3d 474 (2016) (describing the "reasonable person" standard).

¶ 19 That said, we stress that plaintiffs must show more than " 'mere rhetoric that is subjectively offensive.' " Floeting, 200 Wash. App. at 773, 403 P.3d 559 (quoting Evergreen Sch. Dist., 39 Wash. App. at 772-73, 695 P.2d 999 ); see also Kahn v. Salerno, 90 Wash. App. 110, 118, 951 P.2d 321 (1998) ("Laws against discrimination are 'not directed against unpleasantness per se. ' "

(quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir. 1997) ) ). But taking his allegations as true, as we must at this stage, Floeting alleged more than subjectively offensive rhetoric from Group Health's employee. He alleged that he "objectively received substandard treatment." Clerk's Papers at 390. Repeated, express, and outrageous sexual harassment, as alleged here, satisfies the objective standard.

¶ 20 The test we adopt imposes strict liability to the extent it does not allow an employer to escape liability by asserting a lack of fault. According to Black's Law Dictionary, "strict liability" is "[l]iability that does not depend on proof of negligence or intent to do harm but that is based instead on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule." BLACK'S LAW DICTIONARY 1055 (10th ed. 2014). In this case, Group Health will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising its employees. Therefore, Group Health is subject to strict liability for the discriminatory conduct of its employee in a place of public accommodation.

¶ 21 The statute's current language requires this reading. RCW 49.60.215 states, "It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in ... discrimination" on the basis of sex. The statute already holds agents and employees liable for their own actions by virtue of how it defines "person":

"Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee , whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

RCW 49.60.040(19) (emphasis added). We therefore must interpret "any person or the person's agent or employee" to mean something more than that each person is liable for their own actions. See State v. Roggenkamp, 153 Wash.2d 614, 624, 106 P.3d 196 (2005) (" 'each word of a statute is to be accorded meaning' " (quoting State ex rel. Schillberg v. Barnett, 79 Wash.2d 578, 584, 488 P.2d 255 (1971) ) ); In re Recall of Pearsall-Stipek, 141 Wash.2d 756, 767, 10 P.3d 1034 (2000) (" '[T]he drafters of legislation ... are presumed to have used no superfluous words and we must accord meaning, if possible, to every word in a statute.' " (second alteration in original) (quoting Greenwood v. Dep't of Motor Vehicles, 13 Wash. App. 624, 628, 536 P.2d 644 (1975) ) ); State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (" 'Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.' " (internal quotation marks omitted) (quoting Davis v. Dep't of Licensing, 137 Wash.2d 957, 963, 977 P.2d 554 (1999) ) ). Reading the statute to make employers liable for the actions of their employees in this context, even when the employer itself is not at fault, has this effect.

¶ 22 The dissent argues that if we read RCW 49.60.215 to impose strict liability, then we must also apply strict liability to RCW 49.60.180(3), the employment discrimination statute, because the latter statute "clearly states employers will be liable for discrimination occurring in the terms or conditions of employment." Dissent at 48. This is incorrect. RCW 49.60.215 states that it is an unfair practice for "any person or the person's agent or employee" to discriminate, while RCW 49.60.180(3) imposes liability only on an employer who discriminates. RCW 49.60.180(3) does not directly impose liability for the actions of the employer's agents and employees ("It is an unfair practice for any employer ... [t]o discriminate against any person in compensation or in other terms or conditions of employment."). Because RCW 49.60.180(3) prohibits only the employer itself from discriminating, it requires a showing of fault by the employer if the discrimination was perpetuated by an employee. The same is not true of RCW 49.60.215.

¶ 23 The dissent is concerned that strict liability would do little to eradicate discrimination because employers could not escape liability by showing that they acted diligently to prevent and remedy the discrimination. However, if employers know that the only way they can prevent lawsuits is by preventing their employees from discriminating at all, they will try even harder to make sure that their employees are well trained, are well supervised, and do not discriminate. In addition, it gives employers an incentive to end any alleged discrimination as soon as possible, limiting their exposure to damages. This will encourage employers to focus on preventing discrimination, rather than merely punishing employees when it occurs. Prevention will better further the legislative goal of eradicating discrimination in places of public accommodation.

¶ 24 Finally, an employer will still have some defenses available. An employer could still argue to the jury, for example, that the discrimination did not happen at all, that it did not meet the objective or subjective standards required by the statute and therefore was not an unfair practice, or that the person who committed the discrimination was not its agent or employee. What strict liability does preclude are claims that an employer is not liable because it was not negligent and did not intend to do harm. RCW 49.60.215 imposes strict liability on employers for the actions of their employees.

CONCLUSION

¶ 25 Under the plain language of WLAD, employers are liable for their employees' discriminatory conduct toward a customer in a place of public accommodation. The Glasgow standard does not apply to claims of discrimination in places of public accommodation. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Owens, J.

Stephens, J.

Gordon McCloud, J.

Yu, J.

MADSEN, J. (dissenting)

¶ 26 I disagree with the majority's holding that workplace harassment doctrines do not apply in places of public accommodation. I see no reason to treat instances of discrimination differently, nor do I believe the legislature intended to distinguish them-their intent is to eradicate discrimination wherever it occurs. I write separately because the majority erroneously subjects employers to a strict liability standard for the discriminatory actions of nonsupervisory employees-a far higher standard than in the workplace setting-without justification and based on language that does not support such a result. Instead of imposing a duty on business owners to take action when they know, or should know, of discriminating conduct by an employee, the majority's strict vicarious liability standard makes business owners guarantors of their employees' behavior. This court rejected the duty to maintain a "pristine working environment" in the context of workplace harassment in favor of a more balanced, workable approach, holding employers vicariously liable when they know, or should know, of the discriminatory behavior. We should adopt that same balanced approach with public accommodation discrimination.

Discussion

¶ 27 We have held that the Washington Law Against Discrimination (WLAD), ch. 49.60 RCW, provides protections against sexual harassment, as it is a form of sex discrimination.

Glasgow v. Ga.-Pac. Corp., 103 Wash.2d 401, 405, 693 P.2d 708 (1985) ("Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.").

¶ 28 Indeed, the WLAD is clear that "[t]he right to be free from discrimination because of ... sex ... is recognized as and declared to be a civil right." RCW 49.60.030(1). It also establishes that

[i]t shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public ... accommodation, ... except for conditions and limitations established by law and applicable to all persons, regardless of ... sex.

RCW 49.60.215(1). While we have decided cases that involve sexual harassment in the workplace and discrimination in places of public accommodation, we have not had occasion to determine what legal standard is appropriate for imposing liability on a proprietor of a place of public accommodation for alleged sexual harassment by a nonsupervisory employee.

¶ 29 In Glasgow, we held that a claim for sexual harassment in the workplace requires the employee to establish four elements:

(1) The harassment was unwelcome. ... (2) The harassment was because of sex. ... (3) The harassment affected the terms or conditions of employment. ... (4) The harassment is imputed to the employer.

103 Wash.2d at 406-07, 693 P.2d 708 (emphasis added) (formatting omitted). To determine whether the harassment can be imputed to the employer, we stated:

Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiffs supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. at 407, 693 P.2d 708. In other words, unless the employer knew of, should have known of, or participated in the alleged sexual harassment, it will not be liable for a nonsupervisory employee's actions. In my view, we should apply the Glasgow standard relied on by the trial court, which includes consideration of whether the harassment should be imputed to the employer.

¶ 30 According to the majority, the legal framework used by this court in Fell v. Spokane Transit Authority, 128 Wash.2d 618, 911 P.2d 1319 (1996), applies to this case. Under that framework, the plaintiff must establish four elements "[t]o make out a prima facie case under the WLAD for discrimination in the public accommodations context,"

(1) that the plaintiff is a member of a protected class, RCW 49.60.030(1) ;
(2) that the defendant is a place of public accommodation, RCW 49.60.215 ;
(3) that the defendant discriminated against the plaintiff, whether directly or indirectly, id .; and (4) that the discrimination occurred "because of" the plaintiff's status or, in other words, that the protected status was a substantial factor causing the discrimination, RCW 49.60.030.

State v. Arlene's Flowers, Inc., 187 Wash.2d 804, 821-22, 389 P.3d 543 (2017) (citing Fell, 128 Wash.2d at 637, 911 P.2d 1319 ("setting forth elements of prima facie case for disability discrimination under RCW 49.60.215") ). Applying this standard, the majority holds that a business proprietor is directly liable, imposing a strict, vicarious liability standard for employees, regardless of the employer's knowledge of the harassing conduct or the opportunity to address the behavior or to discipline the perpetrator.

¶ 31 The majority rejects the Glasgow test here because it says that the legislature intended to impose direct liability on all employers for harassing conduct by any employee in any entity defined as a public accommodation. The majority says this result is mandated by the language of RCW 49.60.215(1), which says, "It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any ... discrimination." But this language does not justify such draconian results.

¶ 32 First, the plain language of RCW 49.60.215(1) does not clearly impute an agent's acts to an employer, nor does a liberal reading of the statute reach this conclusion. Instead, the plain language of the statute merely states it is an unfair practice for a person to commit the discriminatory act-whether it is "the person" or the "agent" or "employee" of the person. RCW 49.60.215(1). Plainly, the persons who commit the act, or the agents, or the employees themselves will be directly liable for their own conduct. Thus, it seems clear the legislature chose to expand who could be held accountable for their own actions in the public accommodations context by including the language "any person or the person's agent or employee" in an attempt to further its purpose of eradicating discrimination. RCW 49.60.215(1), .010. But broadening who may be directly liable for their own conduct, or even the conduct of others as the majority asserts, tells us nothing about whether the legislature intended to impose strict liability on employers who had no reason to know of the discriminatory conduct.

¶ 33 Although the majority argues the use of "any person or the person's agent or employee" justifies the imposition of strict vicarious liability because it must "mean something more than that each person is liable for their own actions," majority at 44, it fails to explain or justify departing from our principles of statutory interpretation for determining when a statute imposes strict liability. "Washington courts will not construe a statute to impose strict liability absent a clear indication that the Legislature intended to do so." Wright v. Engum, 124 Wash.2d 343, 349, 878 P.2d 1198 (1994) (citing Hyatt v. Sellen Constr. Co., 40 Wash. App. 893, 897, 700 P.2d 1164 (1985) ). In Wright, we rejected the plaintiff's argument to impose strict liability relating to our state's "White Cane Law," RCW 70.84.040. The plaintiff argued that the language stating a driver who fails to take "all necessary precautions to avoid injury" "shall be liable in damages for any injury caused such pedestrian" indicates the legislature intended to impose strict liability. Wright, 124 Wash.2d at 348, 878 P.2d 1198. The statute, he argued, is similar to the "dog biting" statute, which has been construed to create statutory strict liability. See Beeler v. Hickman, 50 Wash. App. 746, 751-52, 750 P.2d 1282 (1988). The Beeler court noted that the statute, RCW 16.08.040, addresses the knowledge requirement stating that an owner is liable "regardless" of the "owner's knowledge of such viciousness." REM. REV. STAT . § 3109-1 (Supp. 1941). "[B]y dispensing with the knowledge requirement, the statute was in derogation of common law." Wright, 124 Wash.2d at 349, 878 P.2d 1198.

¶ 34 We emphatically rejected creating strict liability in this instance because while the "Legislature intended to enhance protection for blind pedestrians, we disagree that this enhanced protection was intended regardless of whether a motorist was aware of the pedestrians' impairment." Id. at 351, 878 P.2d 1198. When the statute is read as a whole, it is clear the "Legislature has provided enhanced protection for blind pedestrians only where there is some conduct ... or indication ... by the pedestrian that he or she is sight or hearing impaired." Id. at 352, 878 P.2d 1198. Thus, we held that RCW 70.84.040 creates liability only where a driver had notice of the victim's impairment.

¶ 35 It must be clear that the legislature intended to impose strict vicarious liability before we construe the statute to give that effect. The legislature knows when it wishes to create strict liability and is clear when doing so. The "dog biting" statute is an example of this, where it does not matter whether the owner is aware of the dog's dangerous propensities and the statute explicitly states that. We construe statutes to "avoid 'absurd or strained consequences.' " Wright, 124 Wash.2d at 351, 878 P.2d 1198 (quoting In re Eaton, 110 Wash.2d 892, 901, 757 P.2d 961 (1988) ). In stark contrast, RCW 49.60.215 is silent as to when an employer may be held liable for the acts of an employee or agent.

¶ 36 If we adopt the majority's reading of the statute, it would be more reasonable to impose strict vicarious liability on employers under RCW 49.60.180(3) (workplace discrimination) than in the context of public accommodations because the statute clearly states employers will be liable for discrimination occurring in the terms or conditions of employment. That statute, like RCW 49.60.215, is silent as to when an employer is vicariously liable for the acts of an employee. Thus, based on the majority's rationale, it necessarily follows that the employer under RCW 49.60.215 should be strictly liable for discrimination occurring in the "terms and conditions of employment." Yet, we did not interpret the workplace harassment statute so broadly. Instead, we applied a "knew or should have known" standard to determine when employers should be vicariously liable in the workplace context.

¶ 37 In Glasgow, we held that an employer should at least be aware of the misconduct in order to hold it vicariously liable for the acts of an employee. In creating the Glasgow test, we found the Minnesota Supreme Court's rationale persuasive:

In our view, the [Minnesota Human Rights] Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees' conduct in the workplace amounting to sexual harassment.

Cont'l Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980). Further, we found actions under Title VII of the Civil Rights Act of 1964 persuasive in implementing a knowledge element to vicarious liability under the workplace harassment statute. See Glasgow, 103 Wash.2d at 406 n.2, 693 P.2d 708. Thus, we held that an employer is vicariously liable under the WLAD

where the act is silent. However, based on the fact that an employer is in the best position to rectify the misconduct only when it is aware or should be aware of the misconduct, we believed a "knew or should have known" standard was appropriate to fairly hold employers accountable for the acts of their employees under RCW 49.60.180(3).

¶ 38 Again, we are faced with a statute that is silent as to when an employer should be held liable for the discriminatory acts of an employee or agent in RCW 49.60.215 (public accommodation). For the same reasons we articulated in Glasgow, where the statute is silent, vicarious liability should be imposed only where the business owner knew or should have known of the discrimination.

¶ 39 To impose strict vicarious liability in the public accommodations context but not in the workplace setting affords greater protection against discrimination for business customers than for employees who rely on continued employment and, therefore, have fewer options than a business customer. It makes no sense that a business proprietor enjoys more protection for instances of workplace discrimination where they are more likely to know of discrimination directed at other employees within the workplace than instances where a nonsupervisory employee discriminates against a fleeting patron. An employer should at least be in the best position to rectify the misconduct before we impose strict vicarious liability for the conduct of its employees.

¶ 40 Fell does not dictate a different result. In that case the alleged discriminatory action was the official act of those in control of the public accommodation, not a nonsupervisory employee as we have here. Fell, 128 Wash.2d 618, 911 P.2d 1319 (discriminatory act was the decision to eliminate service-made by board of directors). This case never considered imposing strict vicarious liability because the issue was not presented. The majority's reliance on Fell on the issue of imputed liability is misplaced.

¶ 41 Perhaps more importantly, the majority's holding does little to eradicate discrimination in places of public accommodation. An employer can timely take action, even terminating the accused employee when it becomes aware of the allegations. Yet even such action will not allow the diligent employer to avoid strict liability. This is an unreasonable and illogical outcome that will have grave implications for how employers conduct themselves in the public accommodations context.

¶ 42 While the majority says that its goal is to eradicate discrimination in places of public accommodation, applying strict liability does not achieve that purpose. Unless the employer knows or has reason to know of a low-level employee's conduct, the employer cannot address the conduct. Imposing strict liability will more likely result in management by lawsuit. I cannot imagine that was the legislature's intent when enacting RCW 49.60.215.

¶ 43 Because discrimination in places of public accommodation should be analyzed under the same standards as workplace harassment, I respectfully dissent.

      The trial judge did not explain his reasoning. As it does here, Group Health argued that Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 406, 693 P.2d 708 (1985), should control. In other words, Group Health asserts that an employer is not liable for the discriminatory conduct of its employee if it did not know about the conduct.

      Group Health argues that Fell does not control because the discrimination in that case was not by a nonsupervisory employee, but the plain language of WLAD does not make this distinction.

      Amici universities are concerned about the State's obligation to protect free speech and academic freedom. This is an interesting and important issue, especially when the place of public accommodation is provided by the government, which is not the case here. No party has raised the issue, and we decline to speculate about it. We note, however, that sexual harassment, as defined for purposes of the Washington Law Against Discrimination, is not protected speech. Tafoya v. Human Rights Comm'n, 177 Wash. App. 216, 229, 311 P.3d 70 (2013).

      Arguello concerns a claim of public accommodations discrimination under the federal civil rights statute 42 U.S.C. § 1981 and § 2000a. Arguello, 207 F.3d at 808-09. Title II of the Civil Rights Act of 1964 does not refer to the "person" who may be liable or contain a relevant definition. For this reason, liability under federal law is usually limited to instances where the common law doctrines of vicarious liability or respondeat superior impose liability. Unlike federal law, the comprehensive language in WLAD supports a reading of both direct and vicarious liability. See RCW 49.60.215.

      Other jurisdictions have similarly declined to apply employment discrimination standards where irrelevant and inapplicable. See, e.g., City of Minneapolis v. Richardson, 307 Minn. 80, 86-87, 239 N.W.2d 197 (1976) ; Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257-58 (4th Cir. 2001).

      Glasgow v. Ga.-Pac. Corp., 103 Wash.2d 401, 406, 693 P.2d 708 (1985) (quoting Cont'l Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980) ).

      The statute in its entirety reads:
      The driver of a vehicle approaching a totally or partially blind pedestrian who is carrying a cane predominantly white in color (with or without a red tip), a totally or partially blind or hearing impaired pedestrian using a guide dog, or an otherwise physically disabled person using a service dog shall take all necessary precautions to avoid injury to such pedestrian. Any driver who fails to take such precaution shall be liable in damages for any injury caused such pedestrian. It shall be unlawful for the operator of any vehicle to drive into or upon any crosswalk while there is on such crosswalk, such pedestrian, crossing or attempting to cross the roadway, if such pedestrian indicates his intention to cross or of continuing on, with a timely warning by holding up or waving a white cane, using a guide dog, or using a service dog. The failure of any such pedestrian so to signal shall not deprive him of the right of way accorded him by other laws.
      Former RCW 70.84.040 (1985).

      The "dog biting" statute in relevant part reads:
      The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
      Rem. Rev. Stat. § 3109-1 (Supp. 1941) (emphasis added).

      See generally Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984) ("Sexual harassment by a co-employee is not a violation of Title VII unless the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action."); Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983) ("[T]he most difficult legal question ... concern[s] the responsibility of the employer for that harassment. ... [T]he plaintiff will have the additional responsibility of ... holding the employer liable under some theory of respondeat superior. We believe ... the plaintiff must demonstrate that the employer had actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action."); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982) ("the plaintiff ... must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action"); Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 943 n.8 (1981) ("The employer, in full knowledge of the alleged offense and having received a formal complaint, was in the best position to correct the offenses, yet impeded the complaint-and even abetted the offenses.").


source: Caselaw Access Project

author: FAIRHURST, C.J.

license: Public Domain

text:
    BNSF RAILWAY COMPANY, Respondent, v. Thomas B. CLARK, MD, Pierce County Chief Medical Examiner, and Pierce County Medical Examiner, Appellants.
    No. 95015-6
    Supreme Court of Washington.
    Argued November 8, 2018 Filed JANUARY 31, 2019
    Stephen D. Trinen, Pierce County Prosecutors Office, 955 Tacoma Ave. S Ste. 301, Tacoma, WA, 98402-2160, for Appellants.
    Michael Eliott Chait, Montgomery Scarp, P.L.L.C., 1218 3rd Ave. Ste. 2400, Seattle, WA, 98101-3017, Tom Montgomery, Montgomery Scarp, PLLC, 1218 3rd Ave. Fl. 25, Seattle, WA, 98101-3097, for Respondent.
    John Scott Blonien, Washington Association of County Officials, 206 10th Ave. Se, Olympia, WA, 98501-1311, Amicus Curiae on behalf of Washington Association of Coroners and Medical Examiners (WACME).
   FAIRHURST, C.J.

¶ 1 This case involves a practice that dates back to our earliest days as a territory-the coroner's inquest. Although we now typically use experts to determine the cause of an unnatural death, historically we relied on the verdict of a coroner's inquest jury. The parties before us ask how a coroner today may invoke the statutory authority that accompanies an inquest.

¶ 2 This case arose after Thomas B. Clark, MD, the Pierce County medical examiner (ME), attempted to subpoena a video held by BNSF Railway Company of a fatal train-pedestrian collision. The parties dispute both whether Dr. Clark properly began a coroner's inquest and the extent of the subpoena power granted by the applicable statute. We are asked to determine whether Dr. Clark exceeded his authority in issuing the subpoena. We hold that because Dr. Clark never began an inquest, he did not have authority to issue the subpoena. We affirm the issuance of a writ of prohibition by the trial court. We also provide guidance as to the scope of the subpoena power, as this issue is likely to recur. I. FACTUAL AND PROCEDURAL HISTORY

¶ 3 On February 5, 2017, a BNSF train was traveling through Puyallup, Washington, during heavy snow. R.S. was standing on the tracks. According to witnesses at the scene, the train blew its whistle, but R.S. was struck and killed. Witnesses disagree about whether R.S. intentionally stayed on the tracks.

¶ 4 The train was equipped with a video camera that recorded the incident. The video was secured by the BNSF evidence preservation team and remains in the possession of BNSF today. After the death, Puyallup Police Department officers reviewed the video at the BNSF offices.

¶ 5 Dr. Clark then contacted BNSF to request a copy of the video to conduct a death investigation. Dr. Clark believes that if he views the video, he must maintain a copy of the video to comply with his obligations under the public record laws. MEs are obligated to keep death investigation records confidential. RCW 68.50.105(1).

¶ 6 BNSF informed Dr. Clark that it will retain the video for 40 years but will not release physical copies of the video because of concerns about the video being leaked. Instead, BNSF offered to show the video to Dr. Clark at any time, as many times as he would like to view it, and brought the video to the ME's office. No one at the ME's office viewed the video.

¶ 7 On March 14, 2017, Dr. Clark sent a memorandum to the Pierce County Superior Court administrator. The memorandum read as follows:

Pursuant to RCW 36.24.020, please be advised that I am opening an inquest concerning the February 5, 2017 death of [R.S.] in Puyallup, Washington.
Until further notice, however, Superior Court is not requested to provide persons to serve as a jury of inquest, nor to schedule a courtroom or related services, because my office is still gathering evidence concerning this matter. You will be advised when the status changes.

Clerk's Papers (CP) at 143. Dr. Clark has stated that it is now and always has been his intention to hold an inquest in this matter.

¶ 8 Dr. Clark then issued an inquest subpoena to BNSF, demanding the production of "[a]ll photographs, film or video" depicting the "events 5 minutes before, during and 5 minutes after" the collision. CP at 145. The subpoena bore cause number 2017-0326 and ordered BNSF to produce the evidence to the ME on or before March 31, 2017. BNSF was unable to find a case with this number on the Pierce County Superior Court's website and refused to comply with the subpoena.

¶ 9 BNSF sought a writ of mandamus to command Dr. Clark to withdraw the subpoena and a writ of prohibition to prevent him from enforcing the subpoena. BNSF argued that the memorandum to the court administrator was insufficient to convene an inquest and that, even if it was sufficient, the subpoena power granted by the statute allows subpoenas only for testimony and not for documents. The Pierce County Superior Court denied the writ of mandamus but entered a writ of prohibition requiring Dr. Clark to withdraw or not enforce the subpoena. Dr. Clark petitioned for direct review, which we granted.

II. ANALYSIS

¶ 10 Coroners' inquests are governed by chapter 36.24 RCW. RCW 36.24.020 states that if a coroner decides to conduct an inquest, he or she "shall notify the superior court to provide persons to serve as a jury of inquest." We hold that this statute requires a coroner to request a jury before an inquest can begin. We also hold that a coroner has the power to issue a subpoena only once he or she has requested a jury. Because Dr. Clark did not request a jury from superior court, he never convened an inquest and did not have authority to issue a subpoena. The trial court did not abuse its discretion by issuing a writ of prohibition, and we affirm.

¶ 11 Dr. Clark has made it clear that he intends to call an inquest jury and issue a new subpoena in this matter if this court affirms. In the interests of judicial economy, we explain that RCW 36.24.050 grants the power to subpoena this video but that the subpoena is returnable only to the inquest jury, not the coroner's office.

A. Inquests and a coroner's subpoena power

1. Standard of review

¶ 12 Statutory interpretation "is a question of law reviewed de novo." State v . James-Buhl, 190 Wash.2d 470, 474, 415 P.3d 234 (2018). "Statutory interpretation begins with the statute's plain meaning." Id. "Plain meaning is 'discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' " Id. (quoting State v . Engel , 166 Wash.2d 572, 578, 210 P.3d 1007 (2009) ). If the statute is ambiguous, we apply "principles of statutory construction, legislative history, and relevant case law to assist us in discerning legislative intent." Cockle v . Dep't of Labor & Indus., 142 Wash.2d 801, 808, 16 P.3d 583 (2001).

2. Coroners must request a jury to begin an inquest

¶ 13 We first hold that a coroner's inquest begins under the statute when the coroner requests a jury from superior court. Because Dr. Clark specifically told the superior court not to provide a jury, he did not begin an inquest.

¶ 14 A coroner's inquest is a proceeding in which a jury, instead of the coroner, determines the cause of death of an individual. "[T]he purpose of a coroner's inquest is to determine who died, what was the cause of death, and what were the circumstances surrounding the death, including the identification of any actors who may be criminally liable for the death." Carrick v. Locke, 125 Wash.2d 129, 133, 882 P.2d 173 (1994). If the coroner holds an inquest, then it is "the jury that decides the matter," not the coroner. Thompson v . Wilson, 142 Wash. App. 803, 818, 175 P.3d 1149 (2008).

¶ 15 Coroners' inquests are governed by chapter 36.24 RCW. Under RCW 36.24.020, a coroner may generally hold an inquest if a death appears to be unnatural. The statute is clear as to how a coroner may invoke the inquest authority: "[t]he coroner in the county where an inquest is to be convened pursuant to this chapter shall notify the superior court to provide persons to serve as a jury of inquest to hear all the evidence concerning the death and to inquire into and render a true verdict on the cause of death." RCW 36.24.020. This sentence discusses the county "where an inquest is to be convened." Id. By using the future tense, the statute indicates that it is discussing what must occur before an inquest begins. The statute explicitly states that the coroner "shall notify the superior court to provide persons to serve as a jury of inquest ." Id. Therefore, the coroner must request a jury in order to begin an inquest. See State v . Krall, 125 Wash.2d 146, 149, 881 P.2d 1040 (1994) (stating "the general rule that 'shall' is presumptively mandatory").

¶ 16 Even if the language were not clear, the legislative history suggests the same result. Chapter 36.24 RCW "dates back virtually unchanged to the 1854 territorial laws of Washington." Carrick, 125 Wash.2d at 137-38, 882 P.2d 173. When it was originally adopted by the first legislative assembly of the Territory of Washington, it stated that when the coroner learns of an unnatural death, "he shall go to the place where the body is, and forthwith summon six good and lawful persons, qualified by law to serve as jurors, to appear before him forthwith, at the place where the body of the deceased is, to inquire into the cause of the death." LAWS OF 1854, § 3, at 436. In 1953, the chapter was amended to make inquests permissive rather than mandatory. At that time, this statute was changed to read, "The coroner shall summon six good and lawful persons to serve as jurors and to hear all the evidence concerning the death and to inquire into and render a true verdict on the cause of death." LAWS OF 1953, ch. 188, § 3. In 1988, the legislature amended the statute again to create uniformity in the way all kinds of jurors are selected, summoned, and compensated. LAWS OF 1988, ch. 188, § 1. The legislature amended the statute by replacing the "summon six good and lawful persons" language with the current "notify the superior court to provide persons to serve as a jury of inquest." Id. § 18. The original language was clear that the coroner holding the inquest must summon the jury immediately. The 1953 amendment removed the word "forthwith" but maintained the mandatory "shall summon" language for a coroner's inquest. These amendments make the inquest process optional but do not authorize the coroner to start the inquest without requesting or summoning a jury.

¶ 17 This reading also comports with the understanding in prior cases. For example, in In re Inquest into Death of Boston, 112 Wash. App. 114, 117, 47 P.3d 956 (2002), the Court of Appeals summarized chapter 36.24 RCW as authorizing inquests that allow "the county coroner to summon and empanel jurors, to subpoena witnesses, and to issue arrest warrants." See also Lee v . Jasman, 183 Wash. App. 27, 57, 332 P.3d 1106 (2014) ("When determining the cause of death, a coroner may summon an inquest jury."), aff'd, 183 Wash.2d 633, 354 P.3d 846 (2015) ; Thompson , 142 Wash. App. at 818, 175 P.3d 1149 ("[T]he coroner may call an inquest and seat a jury and, in that case, it is the jury that decides the matter."). None of these cases contemplated an inquest beginning without a jury being summoned.

¶ 18 In this case, Dr. Clark wrote a memorandum to the Pierce County Superior Court administrator stating that he was "opening an inquest," but that the "Superior Court is not requested to provide persons to serve as a jury of inquest" at this time. CP at 143. Contrary to the statute, Dr. Clark did not "notify the superior court to provide persons to serve as a jury of inquest." RCW 36.24.020. In fact, Dr. Clark specifically told the superior court not to provide persons to serve as a jury of inquest. Because Dr. Clark did not request a jury, an inquest never began.

3. A coroner's subpoena power is tied to inquests

¶ 19 A coroner does not have general subpoena power. The subpoena power arises only once an inquest begins. Because Dr. Clark did not request a jury, he did not commence an inquest and he did not have authority to issue the subpoena.

¶ 20 RCW 36.24.050 provides the coroner with limited power to issue subpoenas. Under this section, "[t]he coroner must summon and examine as witnesses, on oath administered by the coroner, every person, who, in his or her opinion or that of any of the jury , has any knowledge of the facts." RCW 36.24.050. Under Washington law, "[s]tatutes on the same subject matter must be read together to give each effect and to harmonize each with the other." US W. Commc'ns, Inc. v . Utils. & Transp. Comm'n, 134 Wash.2d 74, 118, 949 P.2d 1337 (1997). Because RCW 36.24.050 appears alongside several other sections governing inquests and explicitly mentions "the jury," the most natural reading is that the subpoena power is contingent on there being an inquest.

¶ 21 This interpretation also comports with the general understanding that the subpoena power does not arise until there is a matter pending before a tribunal. For example, the West Virginia Supreme Court of Appeals held that despite the absence of a limitation in the statute, a court has no power to issue a subpoena duces tecum unless a case is pending before it. State v . McGill, 230 W. Va. 569, 573, 741 S.E.2d 127 (2013) ; see also Rogers v . Superior Court, 145 Cal. 88, 91, 78 P. 344 (1904) ("A witness can be compelled to answer only such questions as are legal and pertinent to a matter in issue before a tribunal ." (emphasis added) ); Chambers v . Oehler, 107 Iowa 155, 158, 77 N.W. 853 (1899) ("[T]he pendency of some proceeding in court is necessary in order to warrant the issuance of process for witnesses. There being no case pending in this instance, the justice had no authority to issue a subpoena for a witness.").

¶ 22 However, once the coroner has properly begun the inquest process by requesting jurors, he or she is authorized to issue subpoenas returnable to the inquest jury. The coroner "conduct[s]" the inquest, RCW 36.24.020, and "examine[s]" the witnesses, RCW 36.24.050. The coroner must be allowed to issue subpoenas before the jury is actually empaneled to ensure that the coroner will have witnesses to examine once the jury is empaneled to hear the evidence.

4. This video is subject to a properly issued inquest subpoena

¶ 23 The subpoena power granted by RCW 36.24.050 includes the power to subpoena the video in this case.

¶ 24 Because the word "subpoena" might mean either subpoena ad testificandum or subpoena duces tecum, or both, we look to the way "subpoena" was understood when this statute was enacted. As mentioned above, "RCW 36.24 dates back virtually unchanged to the 1854 territorial laws of Washington." Carrick, 125 Wash.2d at 137-38, 882 P.2d 173. In the same legislative session that adopted this statute, the legislature passed a law discussing subpoenas in civil practice. This statute explains that a "subpoena may require not only the personal attendance of the person to whom it is directed, at a particular time and place to testify as a witness, but may also require him to bring with him any books, documents, or things under this control." LAWS OF 1854, ch. 32, § 296. In 1854, therefore, a "subpoena" included both the power to bring a witness in to testify and the power to require that witness to bring physical items with him or her.

¶ 25 Notably, another section of the original laws of this state did reference both "subpoenas and subpoenas duces tecum, as in ordinary cases at law," LAWS OF 1854, ch. 1, § 40 (emphasis omitted) (regarding elections). However, later, in chapter 32, § 296, the legislature explained that in ordinary cases at law, a "subpoena" alone can require a witness to testify and to bring documents. The legislature did not suggest that the word "subpoena" in the coroner's inquest statute had a narrower meaning than the definition adopted elsewhere in the same legislative session.

¶ 26 The way the 1854 legislature defined "subpoena" is in line with the definition of "subpoena" at the time. A legal dictionary from the mid-1800s defined a "subpoena" as a "writ by which persons are commanded to appear at a certain place, at a certain time, under a penalty." HENRY JAMES HOLTHOUSE, A NEW LAW DICTIONARY, CONTAINING EXPLANATIONS OF SUCH TECHNICAL TERMS AND PHRASES AS OCCUR IN THE WORKS OF LEGAL AUTHORS, IN THE PRACTICE OF THE COURTS, AND IN THE PARLIAMENTARY PROCEEDINGS OF THE HOUSES OF LORDS AND COMMONS 390 (2d ed. 1846) (emphasis omitted). The dictionary explains that there are several different kinds of subpoenas, including subpoenas ad testificandum and subpoenas duces tecum. Id. Both kinds of subpoenas involve compelling witnesses to attend in court. The subpoena duces tecum additionally requires the witnesses "to bring with them books or documents which may be in their possession, and which may tend to elucidate the subject-matter of the trial." Id. (emphasis omitted). Because both forms of subpoenas can thus be fairly described as "subpoenas for witnesses," the phrasing of RCW 36.24.050 does not limit subpoenas to only subpoenas ad testificandum.

¶ 27 This is also a more logical reading of the statute. If the coroner lacked the power to require witnesses to bring physical evidence with them, then the inquest jury would not be able to see and evaluate one of the most crucial pieces of evidence in this case, an actual video of the death. The jury would have to make a determination based only on what other people told them that the video showed. Given the statute's requirement that the jury "hear all the evidence concerning the death," RCW 36.24.020, allowing the coroner to subpoena the video in this case would further legislative intent. See Timberline Air Serv., Inc. v . Bell Helicopter-Textron, Inc., 125 Wash.2d 305, 312, 884 P.2d 920 (1994) ("The purpose of statutory construction is to effectuate legislative intent.").

¶ 28 This court has also previously assumed that subpoena power includes the power to demand physical items. In State ex rel. Sowers v . Olwell, 64 Wash.2d 828, 829, 394 P.2d 681 (1964), an attorney was served with a subpoena duces tecum, ordering him to bring a knife that his client had given to him to a coroner's inquest. This court held that the subpoena was defective in that case because it violated attorney-client privilege, but there was no mention of the coroner's inquest subpoena power being limited to only subpoenas ad testificandum. See also In re Investigation of Death of Francis, No. 8556, 1977 WL 199094, at *1 (Ohio Ct. App. Dec. 7, 1977) (unpublished) (reviewing a coroner's subpoena duces tecum without any mention of a lack of power to issue it despite Ohio Revised Code Annotated § 313.17 granting authority to "issue subpoenas for such witnesses as are necessary").

¶ 29 Finally, our decision today aligns with the only other court that appears to have confronted this issue. In New York, the statute governing coroners' inquests grants coroners the "power to subpoena and examine witnesses under oath." N.Y. COUNTY LAW § 674(4). Interpreting that statute, a New York court found that such a subpoena "is not restricted to merely asking questions of witnesses." Brunner v. Registrar of Med. Records of DeGraff Mem'l Hosp., 119 Misc. 2d 952, 953, 464 N.Y.S.2d 928 (Sup. Ct. 1983). Instead, "the reference generally, to the power to subpoena in [the statute], includes the power of subpoena duces tecum." Id . ; see also 18 C.J.S. Coroners and Medical Examiners § 17 (2007) ("The coroner's statutory subpoena power is not restricted to the examination of witnesses but includes the power of subpoena duces tecum." (citing Brunner, 119 Misc. 2d at 953, 464 N.Y.S.2d 928 ) ).

5. Coroners may demand only that the subpoena be returned to the inquest jury

¶ 30 Although the coroner may subpoena the video in this case, he or she may demand only that the witness bring the evidence to the inquest jury. The coroner is not entitled to summon the witness or the evidence to his or her office.

¶ 31 The statute allows the coroner to "issue subpoenas for witnesses returnable forthwith or at such time and place as the coroner may appoint." RCW 36.24.050. This language is unchanged from the original 1854 law. Under the original law, whenever a suspicious death occurred, the coroner was to "go to the place where the body is, and forthwith summon six good and lawful persons, qualified by law to serve as jurors, to appear before him forthwith, at the place where the body of the deceased is, to inquire into the cause of the death." LAWS OF 1854, § 3, at 436. The statute at that time clearly did not contemplate the coroner reviewing the evidence prior to summoning the jury. The legislature intended to allow subpoenas requiring the witness or evidence to appear before the jury immediately or to appear before the jury at a later place and time. This section does not allow a coroner to demand to see the subpoenaed evidence prior to the inquest.

¶ 32 This reading of the statute aligns it with how some other subpoenas operate. See United States v . Wadlington, 233 F.3d 1067, 1075 (8th Cir. 2000) (explaining that a subpoena that required a witness to come to the prosecutor's office the day before the grand jury proceeding indicated "improper use of grand jury subpoenas" because the language allowing a subpoena to command a witness to " 'attend and give testimony at the time and place specified therein' " applied only to "formal proceedings" and "does not authorize the Government to use grand jury subpoenas to compel prospective grand jury witnesses to attend private interviews with government agents"); United States v . LaFuente, 991 F.2d 1406, 1411 (8th Cir. 1993) ("The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys."); United States v . Keen , 509 F.2d 1273, 1275,1274 (6th Cir. 1975) (a subpoena may "be issued only for the purpose of compelling the attendance of witnesses or the production of evidence at a formal proceeding," and it was "highly improper" to use a subpoena to attend a pretrial interview with the government).

¶ 33 Moreover, RCW 36.24.020 does not allow preinquest inspection of the evidence, and for good reason. The inquest jury must "hear all the evidence concerning the death." RCW 36.24.020. "The coroner must summon and examine as witnesses ... every person, who, in his or her opinion or that of any of the jury, has any knowledge of the facts." RCW 36.24.050 (emphasis added). This strong language shows that the coroner who convenes an inquest has no need to see the evidence in advance because he or she does not have the discretion to view a piece of evidence or hear a particular witness statement and decide not to present it to the jury.

B. Writ of prohibition

1. Standard of review

¶ 34 A writ of prohibition "arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." RCW 7.16.290. A writ of prohibition may be issued only when (1) a government body is about to act in excess of its jurisdiction and (2) the opposing party does not have a " 'plain, speedy, and adequate remedy in the course of legal procedure. The absence of either one precludes the issuance of the writ.' " Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No. 1, 177 Wash.2d 718, 722-23, 305 P.3d 1079 (2013) (quoting Kreidler v . Eikenberry, 111 Wash.2d 828, 838, 766 P.2d 438 (1989) ).

¶ 35 The trial court's grant of a writ of prohibition is reviewed for abuse of discretion. Id. at 730, 305 P.3d 1079. "A trial court abuses its discretion if a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. 'A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard.' " Id. (citation omitted) (quoting In re Marriage of Littlefield, 133 Wash.2d 39, 47, 940 P.2d 1362 (1997) ).

2. The writ was correctly issued because Dr. Clark was exceeding his authority and BNSF did not have an alternative remedy at law

¶ 36 The trial court did not abuse its discretion in issuing the writ in this case. Dr. Clark had not yet begun an inquest and did not have the power to issue a subpoena. Because he nevertheless issued a subpoena, he was acting in excess of his jurisdiction, satisfying the first prong of the test. Because decisions surrounding coroners' inquests may not be directly appealed or set aside by the court, BNSF did not have an adequate remedy in the course of legal procedure, satisfying the second prong. See Boston , 112 Wash. App. at 119, 47 P.3d 956 ("Although some jurisdictions have recognized a limited right to petition for a writ of mandamus or prohibition against the coroner where the coroner has acted arbitrarily, direct appeal is uniformly disallowed."). The trial court's decision was well within its discretion.

III. CONCLUSION

¶ 37 We affirm the trial court's order issuing a writ of prohibition requiring Dr. Clark to withdraw or not enforce the subpoena. The power to issue a coroner's inquest subpoena arises only when the coroner has actually asked the superior court to provide a jury. We also address the scope of the subpoena power, as a dispute over its extent is likely to arise as a result of this decision. RCW 36.24.050 authorizes a subpoena for the video in this case, returnable to the inquest jury.

WE CONCUR:

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon-McCloud, J.

Yu, J.

      In populous counties, the county legislative authority may decide to appoint a medical examiner in lieu of electing a coroner. RCW 36.24.190. The medical examiner assumes the statutory duties performed by the county coroner. Id. Pierce County has chosen to appoint Dr. Clark as the medical examiner. See Pierce County Code 2.06.010(A)(5), (F).

      The name of the man who was killed is not material to the case. In the interests of protecting the privacy of his family, we refer to him by his initials only.

      Indeed, the original version of the statute as adopted by the first legislative session in the Territory of Washington read as follows:
      The coroner may issue subpoenas for witnesses, to the sheriff or any constable of the county, returnable forthwith, or at such time and place as he may appoint, which may be served by any competent person.-He must summon, and examine as witnesses, on oath, by him administered, every person, who, in his opinion, or that of any of the jury, has any knowledge of the facts, and he may summon a surgeon or physician to inspect the body, and give, under oath, a professional opinion as to the cause of death.
      Laws of 1854, § 6, at 436. The only changes between then and now are removing the language requiring the subpoenas to go to the sheriff or constable and making the language gender neutral. The next section included the language now at the end of RCW 36.24.050, "A witness served with a subpoena maybe compelled to attend and testify, or be punished by the coroner for disobedience, in like manner as upon a subpoena issued by a justice of the peace." Id. § 7, at 437. The only amendment in this section was changing "justice of the peace" to "district judge."

      In this case, the coroner issued a subpoena to a business for a video that he knows exists and contains evidence concerning the death. Cf. State v . Miles, 160 Wash.2d 236, 244, 156 P.3d 864 (2007) (explaining that article I, section 7 of the Washington Constitution bars administrative subpoenas that go beyond business records to intrude on private affairs and are issued without judicial oversight). This is not a fishing expedition. Cf. State v . Reeder, 184 Wash.2d 805, 820-21, 365 P.3d 1243 (2015) ("Grand juries are not entitled 'to engage in arbitrary fishing expeditions.' " (quoting United States v . R. Enters., Inc., 498 U.S. 292, 299, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991) ) ).