In Eubanks v. Brown, the Washington Supreme Court decided 8-1  that a prosecutor’s job is to prosecute crimes.  If a prosecutor sexually harasses an assistant, he’s not acting within his or her job description.

The case arose when two administrative assistants sued  a Klickitat County Deputy Prosecuting Attorney for allegedly harassing them while he supervised their work.  The assistants filed their lawsuit in Benton County.  The defendant moved to either dismiss or change venue, arguing that the alleged harassment occured during his supervision of his subordinates and was therefore part of his official duties.  Under Washington law, a plaintiff may only sue a public official for acts taken in virtue of his or her public office in the county in which the acts occured.  That would require the plaintiffs to sue in Klickitat County.  The trial court denied the motions, allowing the suit to go forward in Benton County.  The court of appeals affirmed.

The Supreme Court agreed that if the prosecutor had been acting in the proper sort of official capacity, he could only be sued in Klickitat County.  That is clear under Washington statutes.  However, the Court  determined that the common law distinguishes between acts done by virtue of public office and acts done under color of office.  An act by virtue of public office is an act to fulfill an appropriate public function.  An act under color of office is an act outside the authority given to the public official, but that has the “color” of the office because it appears to be a an official function.  Public officials do not enjoy protection for acts taken under color of office because they are not supposed to be taking those acts in the first place.

The Court determined that this distinction operated in the public official venue statutes.  Venue is limited for lawsuits stemming from acts done by virtue of public office not unauthorized acts under color of office.  Applying that rule here, the Court determined that a prosecutor takes actions to prosecute criminal defendants by virtue of his or her public office.  But if a prosecutor misuses his or her position of authority of office subordinates, that is acting under color of office.

Dissent:           Chief Justice Madsen wrote a solo dissent arguing that the defendant’s public duties included supervising his subordinates.  The harassment claim was an allegation that he wrongfully exercises this authority.  Therefore, the Chief Justice would have held that the acts were done by virtue of his authority and that jurisdiction in Klickitat County was mandatory.

Comment:      Both the majority and dissent drew on very old case law in support of their positions.  But the law clarified today is timely and the impact potentially broad.  Most public official in the State of Washington rely on support staff and colleagues in performing their official duty.  The Supreme Court has made clear that public officials cannot seek the protection of limited venue for everything they do at the workplace.  This protection will only be available for acts that are truly public.  If a public official decides to act badly to his or her subordinates, that’s a private choice and will be treated as such by Washington courts.