                                                                       FILED 

                                                                   NOVEMBER 3, 2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


SARAH'S CARE ADULT FAMILY                    )
HOME (SARAH EVERT AND                        )        No. 32881-3-III
STEPHEN EVERT),                              )
                                             )
                    Appellants,              )
                                             )
      v.                                     )        UNPUBLISHED OPINION
                                             )
DEPARTMENT OF SOCIAL AND                     )
HEALTH SERVICES, Adult Protective            )
Services,                                    )
                                             )
                    Respondent.              )

      FEARING, 1.     The Department of Social and Health Services (DSHS) revoked the

adult family home license of Stephen and Sarah Evert, d/b/a Sarah's Care Adult Family

Home (Sarah's Care) because of abuse and neglect of residents by Sarah. DSHS also

fined the Everts $441,000 for posting, on a website, adult family home residents'

personal medical information and treatment plans. The superior court affirmed the

revocation of the license, but reduced the fine to $21,000. On appeal to the Court of
    No. 32881-3-III
    Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


    Appeals, the Everts challenge the sufficiency of the evidence that Sarah Evert abused and

    neglected former residents, contend that the First Amendment protects their posting of

    residents' personal medical information, and argue the $21,000 fine against them violates

    the Eighth Amendment's prohibition on excessive fines. We affirm the superior court.

                                              FACTS

           In February 2012, DSHS licensed Sarah's Care as an adult family home in


I
J
    Spokane. Sarah and Stephen Evert owned and operated the home.

           Events relevant to this appeal began in August 2012, when Loganhurst, a Spokane


I
f
    adult care facility, abruptly closed. DSHS, needing to find immediate placement for

    Loganhurst residents, contacted Sarah's Care and asked it to accept some residents.
t
I   Sarah's Care accepted two Loganhurst residents, Debbie and Greg, whose care gave rise

    to the DSHS charges of abuse and neglect. Sarah Evert did not want either denizen as a

    long-term resident because the respective state reimbursement rates for Debbie's and

    Greg's care was lower than the rate for other residents.

           On August 19,2012, Debbie moved into Sarah's Care. Sarah Evert then received

    a full medical assessment for Debbie and learned that Debbie needed extensive care.

    Debbie's assessment stated that she manipulated staff, especially as to her medications.

    Debbie has a history of overdosing. She once attempted suicide. Debbie suffers from the

    results of a stroke, blindness, fibromyalgia, chronic pain, memory deficits, and mental

    health issues. Debbie required medication and bathing assistance. Sarah wanted to

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I       No. 32881-3-III
        Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo


I       revoke acceptance of Debbie, but believed she could not refuse care. 

I
             In part because of the history of manipulative behavior by Debbie, Sarah Evert

i       disbelieved that Debbie was blind, told her she was not blind, and called her a

I       "prescription drug addict." Report of Proceedings (RP) (Apr. 15,2013) at 61. Sarah,

II      detying the instructions in Debbie's care plan, directed Sarah's Care staff to withhold
j
        shower and phoning assistance to Debbie. Stephen and Sarah Evert placed Debbie's

        thirty-five medications in a black toolbox with cards describing her complex medication

        regime. Sarah convinced Debbie's doctor to write a note stating Debbie could manage all

        medications, except narcotics, herself. Therefore, Sarah instructed Sarah's Care staff to

        dispense only narcotics to Debbie.

               Renee, a caregiver at Sarah's Care, witnessed a troubling example of Sarah and

        Stephen Everts' treatment of Debbie. While taking pills during breakfast, Debbie

        dropped a pill on the floor. Renee looked for the pill, but Sarah intervened and scolded

        Debbie by commenting: "What would happen if another resident or one of the dogs got

        the pill?" RP (Apr. 15,2013) at 57. Debbie employed a chair to lower herself to look for

        the pill on her hands and knees. When she found it, Sarah exclaimed: "See, I knew you

        could see, or words to that effect." Clerk's Papers (CP) at 23. Debbie tearfully fled to

        her room without breakfast. Sarah then directed staff members not to help Debbie

        retrieve pills because Debbie manipulated staff by dropping the medications excessively.

        Sarah also articulated to Sarah's Care staff a hope that Debbie would overdose on her

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No. 32881-3-III
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medications or "blow up," so the adult family home could transport Debbie to a hospital

emergency room and leave her there.

       On September 4, 2012, Stephen Evert, in front of a caregiver and other residents,

approached Debbie during lunch and demanded payment for her care. Debbie explained

to Stephen that the State paid for her care. Stephen raised his voice. Stephen threatened

to send Debbie away in a taxi if she did not pay. To satisfy Stephen, Debbie

unsuccessfully tried to contact her DSHS caseworker. At the license revocation hearing,

Stephen testified that his comment to Debbie was not a threat but an offer to summon a

taxi to take her to an ATM machine to withdraw money to pay the Everts in advance for

the month of September. Generally, when a resident refuses to pay for her care, an adult

family home may issue a thirty-day notice to vacate. The Everts issued no notice to

Debbie because of their erroneous belief that an adult family home needed to provide

notice only if the resident resided in the home for at least thirty days. The regulation,

however, requires that the adult family home provide a resident of less than thirty days a

notice to vacate "as soon as practicable before transfer or discharge." WAC 388-76­

10615(4).

       On September 4,2012, when Sarah Evert returned home from another job, she

learned of the confrontation between Stephen and Debbie. An angry Debbie said to

Sarah: "I'll show you." RP (Apr. 16,2013) at 229. In response, Sarah directed Debbie

into a car. Debbie complied, and Sarah took Debbie and her medications to the Sacred

                                              4

No. 32881-3-111
Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo


Heart Hospital emergency room. Debbie did not know her destination until inside the

car. Sarah registered Debbie at the emergency room and told hospital staff that Debbie

overdosed on medication. Sarah added: "I can't stay," and she left the emergency room

before any staff member could interview her. RP (Apr. 16,2013) at 144.

       The Sacred Heart emergency room diagnosed Debbie with stress and

abandonment by an adult family home. Hospital staff contacted Spokane police, who

investigated the incident. A responding officer wrote that Sarah's Care "summarily

dumped [Debbie at Sacred Heart], as if she were excessive baggage." Administrative

Record (AR) at 111. The officer added in his report:

             Apparently the owners/operators, of the privately operated but state
      funded group home, Sarah and Stephen Evert had decided that [Debbie]
      required more effort and work than they cared to provide for and had
      decided that dropping her off at the Sacred Heart emergency room was a
      way to dispose of their requirement, to be responsible for her health and
      welfare.

AR at 111.

       Spokane police traveled to Sarah's Care to speak with Stephen and Sarah Evert.

Sarah told the police she conveyed Debbie to the hospital because Debbie overdosed.

When police questioned the propriety of Sarah's actions, she diplomatically responded,

"What are you going to do? Send a [d]eputy out here to beat me up?" AR at 111. Sarah

then telephoned the Sacred Heart emergency room and left a message with the hospital

secretary stating: "she dropped the resident off because the resident had aggressive,


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        No. 32881-3-II1
        Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


        disruptive behavior." RP (Apr. 15,2013) at 71. Later, when DSHS investigated Sarah's

        Care, Sarah told an investigator that she took Debbie to the emergency room because

        Debbie caused excessive stress to other residents.
    J

I              Sarah's Care also took custody of another Loganhurst resident, Greg, whom

        Stephen and Sarah Evert also believed would be a short-term resident. Greg moved into

!
)
        Sarah's Care Adult Family Home on August 21,2012. Before accepting Greg, the Everts

        received his full assessment, care plan, and medical chart. The Everts negotiated a new

        care plan with Greg. Greg suffers from a traumatic brain injury and is wheelchair bound.

        The brain injury causes cognitive impairments and renders Greg prone to agitation,

        yelling, screaming, and crying. Greg's indistinct speech adds to his agitation. Greg also

        unacceptably touches female caregivers. Greg required more of staffs time, attention,

I       and assistance than other residents of Sarah's Care. 


II
1
               DSHS assessment records recommended altering Greg's unsuitable behaviors by 


        taking him outdoors until he quietens, petting and holding his cat, and calling a friend or
f
I       family member. DSHS advocated that a female caregiver immediately confront Greg if
I
I
I
!
        he offensively touched her. Two Sarah's Care staff members expressed fear and

~       intimidation when Greg attempted sexual fondling.
I
f              Greg's chart notes at Sarah's Care showed no behavioral incidents until September
1
1       3,2012. That day Greg grew agitated and raised his fist to a staff member as if ready to
i, 

I       hit her. Staff called 911, and the responding police officers declined action. Sarah's Care 


I
                                                   6



I

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo


staff also called mental health professionals, who arrived to evaluate Greg. Sarah Evert

requested the professionals perform a mental health assessment on Greg to determine

whether he should be civilly committed. Greg asked to speak to his attorney, but allowed

the assessment to proceed. The evaluators concluded Greg did not qualify for

involuntary commitment because Greg was not a danger to himself or others. The

professionals noted that Greg was unhappy with his current placement and wished to

smoke marijuana for pain management and appetite stimulation. Greg possessed a

medical marijuana card and smoked at his former adult family home. He was also upset

at the loss of his cat, who he described as his "best friend." AR at 447.

       After the visit by mental health professionals on September 3, Stephen and Sarah

Evert handed Greg a discharge notice, which DSHS later determined breached the

requirements of WAC 388-76-10615. The notice omitted a location to where Greg would

be discharged and the contact information of the state long-term care ombudsman. See

WAC 388-76-10615. The discharge letter declared:

               You have exhibited unacceptable behavior that has endangered the
      well being [sic] of, and caused a great deal of stress to other residents and
      staff and have exhibited violent tendencies threatening with your fists and
      yelling and swearing at the caregiver.
               This behavior will not be tolerated here. It puts everyone at risk of
      injury and causes an unnecessarily unpleasant environment. I expect you to
      be civil for the remainder of your stay here. If you choose to leave earlier
      than 30 days, that will be acceptable to me. If you choose to act violently
      or swear and scream abusively at the staff or residents I will file criminal
      charges against you. Also, you will not be allowed to smoke pot or use
      illicit drugs of any kind, or invite your drug providers to the premises. The

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    No. 32881-3-III
    Sarah's Care Adult Family Home v. Dep't olSoe. & Health Servo


           police will be called immediately under these circumstances.
                   Your 30th day will be October 2, 2012. I will assist you in any way
           I can to facilitate a smooth transition.

    AR at 445. Greg's chart notes did not contain any incidents of smoking pot or inviting

    drug dealers to Sarah's Care, nor were there any other incidents of aggression besides the
I
I
!
    incident that occurred that day.

           Upon handing Greg the discharge notice, Stephen Evert told Greg: "I am tired of

    putting up with your crap; if! have to, I'll tie a rope to your chair and pull you out with

I   my tractor." CP at 20-21. Stephen also declared: "if the police and the fire department

    don't take you, I'll put you out into the yard." CP at 21. When later asked by a DSHS

    investigator if the Everts attempted any reasonable accommodation to remedy Greg's

    unacceptable behavior, Stephen responded: "[we] did everything to accommodate him

    except for hav[ing] drug dealers." CP at 22. Stephen could not identity any examples of

    reasonable accommodation.

           DSHS received complaints against Sarah's Care that alleged failure to conduct an

    appropriate tuberculosis screening of a caregiver and inappropriate treatment of residents.

    On September 11,2012, DSHS Complaint Investigator Melissa Axtell, a registered nurse,

    entered Sarah's Care adult family home without advance notice. Axtell interviewed three

    of the complainants, the Everts, and other Sarah's Care staff.

           On September 26, 2012, DSHS notified Stephen and Sarah Evert that the State

    was summarily suspending and revoking Sarah's Care's adult family home license. The

                                                  8

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


notice also prohibited the home from accepting additional residents. DSHS immediately

revoked the license on the ground that serious deficiencies in the home constituted an

immediate danger to the health, safety, and welfare of residents. The failings included

failure to confirm tuberculosis testing of a caregiver, failure to reasonably accommodate

Greg before issuing a discharge notice, failure to safeguard Debbie's safe and orderly

discharge, and failure to prevent abuse of residents. On September 26, DSHS also served

the Everts with a statement of deficiencies and plan of correction. The notice accused

Sarah Evert of abuse and neglect of adult family home residents. On October 5, 2012,

Sarah requested an administrative hearing to challenge the license revocation.

       On November 20, 2012, while Stephen and Sarah Evert awaited an administrative

hearing, Stephen launched a public website, www.sarahscare.com. on which he posted

long rants against DSHS. The website publicized identifying information of former

residents of Sarah's Care, including residents' first and last names. Postings also accused

Debbie and Greg of welfare fraud and abusing Sarah's Care staff. One post described

niceties of residents' care requirements. On the Internet site, Stephen Evert plastered one

resident's private communications with his attorney and guardian and another resident's

photograph.

       On December 7, 2012, DSHS employee Ken Yancy discovered Sarah's Care

website and alerted Elena Madrid, DSHS field manager. Madrid and Melissa Axtell

studied the website and ascertained that revelations on the site violated statutes and

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No. 32881-3-III
Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo


regulations protecting adult family home resident privacy and confidentiality. Madrid

contacted Stephen Evert and demanded immediate removal of the confidential

information from the website. Madrid warned Stephen that DSHS would assess $3,000

per day fines for each day that the information remained online.

       On December 7, DSHS also issued Stephen and Sarah Evert a notice of civil fine.

The notice informed the Everts that DSHS would not reinstate the adult family home

license if they failed to immediately remove from the online website all confidential

resident record information. At the administrative hearing, Madrid testified that the

Everts deleted all confidential information by December 13,2012.

                                      PROCEDURE

       Stephen and Sarah Evert also demanded an administrative hearing to challenge the

civil fines. DSHS consolidated the appeal challenging the fines with the appeal disputing

the license revocation. The appeals' administrative law judge affirmed DSHS'

revocation of Sarah's Care's adult family home license, the findings of abuse, and the

$3,000 daily fine. The administrative law judge's order did not identify the window of

time to which the fines applied.

       Stephen and Sarah Evert appealed the administrative law judge's decision to the

DSHS Board of Appeals (Board). The appeal challenged numerous findings of fact and

the imposition of the fine but withdrew opposition to the revocation of the adult family

home license. The Board nonetheless affirmed DSHS' decision to revoke the adult

                                            10 

     No. 32881-3-III
     Sarah's Care Adult Family Home v. Dep't o/Soc. & Health Servo


     family home license and upheld the finding of abuse against Sarah. The Board calculated

     the Everts' fine from November 20,2012, the day Stephen Evert created the website, to

     April 16, 2012, a total of 147 days. Evert testified that he suspended the website on the

     latter day. The Board's ruling did not address whether confidential information remained

     on the website until cessation of the site.

            Stephen and Sarah Evert sought judicial review in superior court of the DSHS

I    Board's decision. In court, the Everts challenged the sufficiency of the evidence


Ii   supporting the findings of abuse and neglect against Sarah Evert. The Everts also argued

     that instructions to remove the residents' confidential information from the website and

     the civil fine violated their constitutional right to free speech.

            The superior court modified two of the Board's rulings. The court acknowledged

     DSHS' concession that the Board's finding of fact 43 incorrectly found that DSHS

     demanded that Stephen Evert dismantle the website, when the department instead ordered

     expungement of confidential content. The superior court also found insufficient evidence

     to support the Board's imposition of the $3,000 daily fine for 147 days. The superior

     court reduced the fines to a period of seven days, the window of time between when

     DSHS discovered the violation and Stephen Evert removed the offending information.

                                        LA W AND ANALYSIS

            Stephen and Sarah Evert raise three issues on appeal. They contend that

     substantial evidence does not support the finding of abuse and neglect against Sarah

                                                    11 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


Evert. They argue that DSHS violated their right to free speech by demanding

elimination of former residents' identifying information from Sarah's Care's website.

They maintain that the $21,000 fine imposed by DSHS on the Everts for posting the

information on the website constitutes an excessive fine in violation of the Eighth

Amendment to the United States Constitution and article I, section 14 of Washington's

Constitution.

       Issue 1: Whether substantial evidence supports DSHS' finding ofabuse and

neglect against Sarah Evert?

       Answer 1: We decline to address this assignment oferror because the Everts do

not properly assign error to any findings offact, fail to cite evidence in the record to

sustain their assignment oferror, andfail to analyze the findings.

       Stephen and Sarah Evert's brief specifies their assignment of error 1 as:

              The administrative Initial Decision, dated June 18,2013 affirmed in
       the Review Decision and Final Order dated December 20,2013 erred in
       finding Sarah Evert and Stephen Evert abused vulnerable adults placed in
       their Adult Family Home as that finding is not supported by substantial
       evidence in the record when the record is considered as a whole.

Br. of Appellants at 1 (footnotes omitted). The assignments of error identify no

specific or numbered finding of fact entered by either the administrative law judge

or the Board. In an appendix, the Everts isolate specific findings they challenge,

but they primarily reference the initial order entered by the administrative law

judge. The appendix only assigns error to seven of the Board's findings of fact.

                                             12 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't a/Soc. & Health Servo


Those findings only address the Everts' assertion of free speech rights. The

appendix contains no citation to the record for the alleged Board's errors. In the

body of the brief, the Everts engage in a scattergun analysis without identifying

any finding of fact.

       Stephen and Sarah Evert's assignments of'error and brief disturb several principles

of appellate review. Under the Administrative Procedure Act, ch. 34.05 RCW, the

relevant findings on appeal are those of the Board, not those of the administrative law

judge. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 406,858 P.2d 494 (1993). This rule

follows from the agency holding authority to substitute its findings for those of an

administrative law judge. RCW 34.05.464(4); City a/Fed. Way       V.   Pub. Emp't Relations

Comm 'n, 93 Wn. App. 509, 511-12,970 P.2d 752 (1998).

       The rules of appeal contain special rules concerning assignments of error. RAP

lO.3(g) and (h) read:

               (g) Special Provision for Assignments of Error.... A separate
       assignment of error for each finding of fact a party contends was
       improperly made must be included with reference to the finding by number.
       The appellate court will only review a claimed error which is included in an
       assignment of error or clearly disclosed in the associated issue pertaining
       thereto.
               (b) Assignments of Error on Review of Certain Administrative
       Orders. In addition to the assignments of error required by rule ...
       I O.3(g), the brief of an appellant or respondent who is challenging an
       administrative adjudicative order under RCW 34.05 shall set forth a
       separate concise statement of each error which a party contends was made
       by the agency issuing the order, together with the issues pertaining to each
       assignment of error.

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No. 32881-3-II1
Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo



       RAP 1O.3(a)(6) directs each party to supply, in his or her brief, "argument in

support of the issues presented for review, together with citations to legal authority and

references to relevant parts of the record." We do not consider conclusory arguments that

are unsupported by citation to authority. Joy V. Dep 't ofLabor & Indus., 170 Wn. App.

614,629,285 P.3d 187 (2012), review denied, 176 Wn.2d 1021,297 P.3d 708 (2013).

Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration. West v. Thurston County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012);

Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).

       Stephen and Sarah Evert fail to properly assign error to any relevant findings of

fact concerning the conclusion of abuse of residents. Because of a disjointed analysis of

the assignments, this court must guess as to what findings are challenged, where to locate

the findings in the record, and what evidence supports and disputes the findings.

Therefore, we reject the Everts' challenge to the Board's findings of fact.

      Issue 2: Whether DSHS violated the Everts right to free speech by requesting
                                                    J




they remove the personal and confidential health information offormer residents from

www.sarahscare.com ?

      Answer 2: No.

       Stephen and Sarah Evert next contend that DSHS violated their right to free

speech under the First Amendment of the federal constitution or under article I, section 5


                                             14 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't a/Soc. & Health Servo


of our state's constitution. The Everts do not assert this right under any particular theory

of First Amendment law, nor do they challenge the constitutionality of the applicable

statute and regulations. Instead, they argue that Stephen's posting of former residents'

confidential identifying and medical information was permissible because Stephen

"scrubbed" the website of residents' names and neither Debbie nor Greg have

independently sought legal recourse against them for slander. DSHS contends that the

Everts have no cognizable First Amendment or Washington Constitution claim and their

argument lacks sufficient clarity to address. We agree with the State.

       Stephen Evert's posting of personal identifying information and medication

regimes of patients violated a Washington statute and state regulations. RCW 70.129.050

provides:

               The resident has the right to personal privacy and confidentiality of
       his or her personal and clinical records ...

              (2) The resident may approve or refuse the release of personal and
      clinical records to an individual outside the facility unless otherwise
      provided by law.

WAC 388-76-10575(1) reads:

             The adult family home must ensure the right of each resident to
      personal privacy that includes ... (b) Medical treatment; (c) Clinical or
      resident records.

WAC 388-76-10315 provides:

              The adult family home must:


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No. 32881-3-111
Sarah's Care Adult Family Home v. Dep't o/Soc. & Health Servo


              (I) Create, maintain, and keep records for residents in the home
       where the resident lives and ensure that the records:
              (a) Contain enough information so home can provide the needed
       care and services to each resident;
              (b) Be in a format useful to the home;
              (c) Be kept confidential so that only authorized persons see their
       contents;
              (d) Are only released to the following persons:
              (i) A health care institution;
              (ii) When requested by the law;
              (iii) To department representatives; and
              (iv) To the resident.

       Stephen Evert disregarded the commands of Washington law by publishing

intimate details of residents' care in a disparaging mode. Stephen displayed the

confidential information entrusted to Sarah's Care while using residents' first and last

names on a website accessible to anyone online and distributed widely. Nevertheless, the

Everts attempt to use the First Amendment to shield them from the consequences of their

actions. As explained below, the attempt fails.

       This court does not address constitutional arguments when not adequately briefed

or supported with citation to apposite legal authority. Tunstall v. Bergeson, 141 Wn.2d

201,224, 5 P.3d 691 (2000); Farnam v. CRISTA Ministries, 116 Wn.2d 659, 680, 807

P.2d 830 (1991); City o/Spokane v. Taxpayers o/City o/Spokane, 111 Wn.2d 91,96,758

P.2d 480 (1988). A party cannot rely on conclusory statements regarding alleged

constitutional infirmities. Lund v. Dep't 0/Ecology, 93 Wn. App. 329, 339, 969 P.2d

1072 (1998). Washington courts, invoking naughty and nautical flair, have declared


                                            16 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


through the years: '" [N]aked castings into the constitutional seas are not sufficient to

command judicial consideration and discussion.'" Pub. Hosp. Dist. No.1 v. Univ. of

Wash., 182 Wn. App. 34,49,327 P.3d 1281 (2014), review denied sub nom. Pub. Hosp.

Dist. No.1 v. Univ. of Wash., 337 P.3d 326 (Wash. 2014) (quoting State v. Johnson, 179

Wn.2d 534, 558, 315 PJd 1090, cert. denied, 135 S. Ct. 139, 190 L. Ed. 2d 105 (2014));

In re Rosier, 105 Wn.2d 606, 616, 717 P .2d 1353 (1986) (quoting United States v.

Phillips, 433 F.2d 1364,1366 (8th Cir. 1970)).

       As authority for their free speech claim, Stephen and Sarah Evert cite three

misplaced cases: Demers V. Austin, 746 FJd 402 (9th Cir. 2014); Hopper v. City of

Pasco, 241 FJd 1067 (9th Cir. 2001); and Bradburn v. North Central Regional Library

District, 168 Wn.2d 789, 231 PJd 166 (2010). Demers v. Austin addressed the scope of

First Amendment protections afforded in the academic public employment context. A

tenured Washington State University professor distributed a pamphlet on school grounds,

which distribution he contended resulted in retaliatory unfavorable performance reviews

and audits by his department. In reversing a summary judgment dismissal of the case by

the district court, the Ninth Circuit held that Pickering v. Board ofEducation, 391 U.S.

563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) controlled because teaching and academic

writing are a special concern of the First Amendment in the public employment context.

The pamphlet distributed by Demers addressed matters of public concern because it was




                                             17 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


widely distributed and made broad proposals to change the direction and focus of the

Edward R. Murrow School of Communication.

       Stephen and Sarah Evert provide a perplexing assay of Demers. The Everts

actually cite to Demers V. Austin, 729 F.3d 1011 (9th Cir. 2013), a version of the opinion

later withdrawn. Therefore, all of their citations to Demers are incorrect. Moreover, the

Everts focus on the method of distributing writings, only one aspect of Pickering's

"public concern" analysis, rather than the substance of the speech deserving of First

Amendment protections.

       Stephen and Sarah Evert cite no authority that holds an operator of a privately

owned adult family home is afforded the same First Amendment protections as a public

employee because the operator accepts resident placements from the State. They forward

no legal authority that the owner of an adult family home deserves the same protection as

a public employee.

      The high traffic to Stephen Evert's spiteful website might render the site's content

of public concern. Nevertheless, the substance and distribution of allegedly protected

information is only the first part of a Pickering analysis. A public employee seeking

shelter under the First Amendment must also demonstrate that his interest in commenting

on matters of public concern outweighs the interest of the State, as an employer, in

promoting the efficiency of the public service it performs. Pickering, 391 U.S. at 568.




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No. 32881-3-III
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The Everts advance no argument that their vindictive actions outweigh the State's interest

in protecting the privacy and safety of its vulnerable adults.

       Bradburn   V.   North Central Regional Library District, 168 Wn.2d 789, 231 P.3d

166 (2010) and Hopper v. City ofPasco, 241 F.3d 1067 (9th Cir. 2001) are public forum

cases. Bradburn addressed a certified question from the Eastern District of Washington

regarding whether the North Central Regional Library (NCLR) could permissibly restrict

patron access to websites under article I, section 5 of the Washington Constitution. In

holding that NCLR could lawfully filter patrons' Internet access, the court determined (1)

Internet access in a public library is not subject to public forum analysis or strict scrutiny

review, and (2) a public library's filtering policy does not violate article I, section 5 if it is

"reasonable when measured in light of the library's mission and policies, and is

viewpoint neutral." Bradburn, 168 Wn.2d at 815.

       Hopper involved an appeal from two artists who were invited to display their art in

the Pasco City Hall Gallery, but whose works were subsequently rejected because city

officials found them too controversial. Hopper, 241 F.3d at 1073. Reversing the district

court's grant of summary judgment to the city on the artists' First Amendment claims, the

Ninth Circuit found that the city had created a designated public forum. Hopper, 241

F.3d at 1081. As such, Pasco's reason for excluding the artists' work failed under the

applicable strict scrutiny analysis, as the city could not identifY a compelling government

interest in censoring the artwork. Hopper, 241 F.3d at 1081-82.

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No. 32881-3-II1
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


       Stephen and Sarah Evert's argument presupposes that Stephen created a public

forum by building the website www.sarahscare.comandnotrestrictingaccesstoit.This

argument is nonsensical. Stephen Evert is not a government entity. A party must make a

threshold showing of government ownership and control before courts will engage in a

"forum analysis" to determine what, ifany, free speech protections apply. Bradburn, 168

Wn.2d at 813.

       Stephen and Sarah Evert present only a haphazard, incomplete First Amendment

argument, and for practical purposes, this court cannot address the Everts' contention.

The Everts also fail to advance authority suggesting that the Washington Constitution

provides any enhanced free speech protection in the setting on appeal.

       Issue 3: Whether the $3,000 per day fine imposed by DSHS on the Everts is an

excessive fine in violation ofthe Eighth Amendment?

       Answer 3: We refuse to address this issue because Stephen and Sarah Evert did

not raise this issue before DSHS or the superior court and the Everts fail to show

manifest constitutional error.

       Stephen and Sarah Evert raise their third assignment of error for the first time

before this appellate court. They argue that the fine imposed by DSHS is

unconstitutional as excessive. The Everts did not contend until their reply brief that

DSHS misapplied Washington rules when levying the fine, assuming this argument is

even raised in the second brief. We do not address claims first asserted in a reply brief.

                                             20 

No. 32881-3-III
Sarah's Care Adult Family Home v. Dep 't ofSoc. & Health Servo


PugetSound Marina, Inc.       V.   Jorgensen, 3 Wn. App. 476, 480, 475 P.2d 919 (1970). The

Everts do not challenge the constitutionality of the statutory scheme enacted by the

Washington legislature or the regulatory scheme of fines adopted by DSHS. Therefore,

we limit our review to the constitutional claim of excessiveness based on the Everts'

individual circumstances.

       We must address whether Stephen and Sarah Evert may advance their

constitutional argument for the first time before this appellate court. RAP 2.5(a)

provides, in relevant part:

              The appellate court may refuse to review any claim of error which
       was not raised in the trial court. However, a party may raise the following
       claimed errors for the first time in the appellate court: ... (3) manifest error
       affecting a constitutional right.

In seeking review under RAP 2.5(a)(3), an appellant must identify a constitutional error

and show how the alleged error actually affected the defendant's rights at trial. State v.

Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). It is this showing of actual

prejudice that makes the error manifest, allowing appellate review. State v. McFarland,

127 Wn.2d 322, 333,899 P.2d 1251 (1995). The focus of the actual prejudice must be on

whether the error is so obvious on the record that the error warrants appellate review.

State v. O'Hara, 167 Wn.2d 91,99-100,217 P.3d 756 (2009). We hold that the record

does not permit review of whether the DSHS fine was excessive and thus the Everts do

not raise an error of manifest constitutional proportions. Thus, we refuse to directly


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No. 32881-3-II1
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


address the merits of the Everts' constitutional assertion.

       The Eighth Amendment commands: "Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted." Article I, section

14 of the Washington Constitution is identical. The Excessive Fines Clause limits the

government's power to extract payments, whether in cash or in kind, as punishment for

some offense. United States V. Bajakajian, 524 U.S. 321,328, 118 S. Ct. 2028, 141 L.

Ed. 2d 314 (1998). A fine is excessive if it is "grossly disproportional to the gravity of a

defendant's offense." Bajakajian, 524 U.S. at 334. Disproportionality is not sufficient to

prove a constitutional defect. "Gross" disproportionality is required.

       The Evergreen Supreme Court has held that an Excessive Fines Clause claim

"involves a genuine constitutional issue." State v. WWJ Corp., 138 Wn.2d 595, 603, 980

P.2d 1257 (1999). Nevertheless, the record must be sufficiently developed in order for a

reviewing court to evaluate the merits of such a claim under RAP 2.5(a)(3). WWJ, 138

Wn.2d at 603-04.

       State v. WWJ Corp. controls this appeal. In WWJ, our high court asked whether

the record was sufficiently developed to determine whether a $500,000 fine assessed

against WWJ for multiple violations of the Mortgage Broker Practices Act, ch. 19.146

RCW, and the Consumer Protection Act, ch. 19.86 RCW, offended the Excessive Fines

Clause. In holding the record insufficient to allow review of the newly-raised Eighth

Amendment claim, the Supreme Court identified the "grossly disproportional" standard

                                             22 

No. 3288l-3-III
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


articulated in Bajakajian. The court found the record wanting because it lacked an

analysis of the gravity of each of WWJ' s multiple violations. The high court noted that

had WWJ objected to the size of the requested fine at the trial level, the State and the

court would have had the opportunity to address the issue. The court held any claimed

error was not manifest and therefore review was not warranted under RAP 2.5(a)(3).

       Stephen and Sarah Evert contend, for the first time on appeal, that DSHS'

$3,000.00 per day fine for posting adult family home residents' medical and personal

identifying information online is excessive, regardless of the number of days for which it

is imposed. They urge this court to review the issue and contend that DSHS failed to

demonstrate the proportionality of the fine in relation to the harm caused by their posting

of the information. DSHS notes that the Everts have not challenged the agency's

findings that the Everts' actions harmed their former residents.

      The Washington legislature authorized DSHS to impose civil penalties of up to

$3,000 per day for each incident wherein an adult family home provider breaches a

statute or associated rules. RCW 70.l28.l60(l)(a), (2)(d). WAC 388-76-lO976 provides

a tiered grid to guide DSHS in imposing fines. The grid specifies that DSHS may impose

the $3,000 per day fine when the offending action constitutes serious harm and remains

uncorrected or when the violation constitutes an imminent danger or immediate threat to

the residents in its care. WAC 388-76-10976.

       In an appendix to their opening brief, Stephen and Sarah Evert assign error to

                                             23
No. 32881-3-111
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


several of the DSHS Board's findings regarding the propriety of the fine imposed.

Nevertheless, the errors claimed by the Everts merely reargue the facts and the Board's

credibility findings. The crux of their argument is that sharing personal and embarrassing

medical information of vulnerable adults causes no harm as long as the posting changes

the adult's first names.

       Stephen and Sarah Evert do not discuss reasons why the $3,000 per day fine is

excessive. In their briefing, they identify no daily amount that would be apposite.

Moreover, the Everts confusingly argue that they face a fine of "over a half million

dollars," even though the superior court reduced the fine to $21,000. Br. of Appellants at

27. In oral argument, the Everts first contended that a fine in any amount would be

excessive, but such an argument goes to the validity of the fine not the disproportionality

of the fine. Later in oral argument, the Everts asserted that any amount above $1,000 was

excessive. The Everts still did not analyze for this court why an amount above $1,000 is

grossly disproportionate. The appellate record and the Everts' arguments fail to assist

this court in determining whether the fine is "grossly disproportionate."

                                     CONCLUSIONS

       We affirm the DSHS' finding of abuse by Sarah Evert. We affirm the superior

court's reduction of the fine to $21,000.




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No. 32881-3-II1
Sarah's Care Adult Family Home v. Dep't ofSoc. & Health Servo


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





      Brown, A . .1.




                                           25 

