Guillen v. Pierce County, No. 68535-5, (Slip Op., September 13, 2001).



Aug. 2001           GUILLEN v. PIERCE COUNTY                   1

                        Cause No. 68535-5



                     [No. 68535-5. En Banc.]

    Argued November 16, 2000.  Decided September 13, 2001.

            IGNACIO GUILLEN, as legal )

        guardian for JENNIFER GUILLEN )

        and ALMA GUILLEN, minors; and )

            MARIANO GUILLEN, as legal )

         guardian for PAULINA GUILLEN )

                  and FATIMA GUILLEN, )

                                      )

                         Respondents, )

                                      )

                                   v. )

                                      )

           PIERCE COUNTY, a municipal )

                         corporation, ) NO. 68535-5

                                      )

                          Petitioner, )

                                      )

             THE ESTATE OF CLEMENTINA )

                   GUILLEN-ALEJANDRE, )

                                      )

                           Defendant. )

                                      ) EN BANC

                  - - - - - - - - - - )

                                      )

            ROBERT and LuANN WHITMER, )

      husband and wife, individually, )

       and as the guardians of SHANNA )

             WHITMER, a minor, HANNAH )

          WHITMER, a minor, and DENEL )

            WHITMER, an incapacitated ) Filed September 13, 2001

                              person, )

                                      )

                         Respondents, )

                                      )

                                   v. )

                                      )

      CHIN S. YUK and "JANE DOE" YUK, )

            husband and wife, and the )

           marital community composed )

          thereof, and CHANG CHOI and )

         "JANE DOE" CHOI, husband and )

              wife, and the community )

            composed thereof; CITY OF )

                LAKEWOOD, a municipal )

        corporation; PIERCE COUNTY, a )

       municipal corporation; and the )

          CITY OF TACOMA, a municipal )

                         corporation, )

                                      )

                         Petitioners. )



  MADSEN, J., concurs by separate opinion.



  Trial Court: Superior Court, Pierce County County,

No. 96-2-13404-5, Frederick B. Hayes, J.

  Susan P. Jensen, Pierce County Prosecuting Attorney; Daniel R. Hamilton,

Deputy Prosecuting Attorney, for petitioners.

  Gordon Thomas Honeywell Malanca Peterson & Daheim, by Salvador A. Mungia II

and Darrell L. Cochran; Casey Gore & Grewe, by David K. Dewolf; King County

Prosecutor's Office, for respondents.



Amicus Curiae on behalf of Wa State Assn of Municipal Attorneys

            William L. Cameron

            Luce Lombino & Riggio

            4505 Pacific Hwy E Ste a

            Tacoma, WA  98424-2638

Amicus Curiae on behalf of Washington Association of Prosecutin

            E B. Potter

            Clark Co. Prosc. Atty Ofc

            P.O. Box 5000

            Vancouver, WA  98668



Amicus Curiae on behalf of State of Washington

            William L. Williams

            Senior Asst. Attorney General

            PO Box 40100

            Olympia, WA  98504-0100



            Michael E. Tardif

            Asst Atty Gen - Dl&i

            PO Box 40126

            Olympia, WA  98504-0126



Amicus Curiae on behalf of Washington State Trial Lawyers Assoc

            Gary N. Bloom

            Harbaugh & Bloom

            P.O. Box 1461

            Spokane, WA  99210



            Debra L. Stephens

            6210 E Lincoln Ln

            Spokane, WA  99207-9220



            Bryan P. Harnetiaux

            517 E 17th Ave

            Spokane, WA  99203-2210



Counsel for Other Parties

            Harold T. Dodge Jr.

            Rush Hannula Harkins & Kyler

            715 Tacoma Ave. S.

            Tacoma, WA  98402



            Garth L. Jones

            Stritmatter Kessler Whelan Withey Coluccio

            413 8th St

            Hoquiam, WA  98550



            Thomas J. West

            Krilich La Porte West & Lockner PS

            524 Tacoma Ave. So.

            Tacoma, WA  98402-5416



            Timothy Malarchick

            Attorney At Law

            Ste 310

            4423 Point Fosdick Dr

            Gig Harbor, WA  98335



            Jeffrey F. Hale

            Johnson Graffe Keay & Moniz (email Address Jeffh@jgkm.COM)

            Ste 101

            2115 N 30th St

            Tacoma, WA  98403-3318



            Philip I. Brennan Jr

            Krilich La Porte West & Lockner

            524 Tacoma Ave S

            Tacoma, WA  98402-5416



            Richard H. Benedetti

            Davies Pearson Pc

            920 Fawcett Avenue

            P.O. Box 1657

            Tacoma, WA  98402



            Keith L. Kessler

            Stritmatter Kessler Whelan Withey Coluccio

            413 8th St

            Hoquiam, WA  98550



            Charles K. Wiggins

            Wiggins Law Office

            241 Madison Ave N

            Bainbridge Is, WA  98110



  BRIDGE, J. - The respondents in these consolidated cases seek access

to accident reports and other materials and data held by the local

government petitioners relating to the traffic history of the sites of

their subject car accidents. Petitioners claim that all accident reports

are nondiscoverable, since RCW 46.52.080 declares them "confidential" and

inadmissible. Petitioners also contend that all the materials

and data at issue are privileged under 23 U.S.C. § 409-and consequently

also exempt from public disclosure under RCW 42.17.310(j)-since they

were, according to sworn declarations in the record, "compiled" or

"collected" by petitioners pursuant to 23 U.S.C. § 152 so as "to identify

hazardous locations, sections, and elements" on "all public roads" that

might prove to be good candidates for federally funded safety enhancement

projects. Petitioners note that 23 U.S.C. § 409 was expressly amended by

Congress in 1995 to cover all "reports, surveys, schedules, lists, or

data compiled or collected for the purpose of identifying, evaluating, or

planning the safety enhancement of potential accident sites, hazardous

roadway conditions, or railway-highway crossings, pursuant to §§ 130,

144, and 152 of this title." We reject both arguments.

  While RCW 46.52.080 exempts accident reports prepared by persons

involved in accidents from public disclosure or admission as evidence in

certain trials, we hold that they remain discoverable. Furthermore, we

hold that Congress' 1995 amendment to 23 U.S.C. § 409 violates the United

States Constitution's federalist design as defined by its framers and by

the United States Supreme Court, insofar as it makes state and local

traffic and accident materials and data nondiscoverable and inadmissible

in state and local courts, simply because they are also

"collected" and used for federal purposes. We hold that only

materials and data originally created for the statutorily

identified federal purposes are lawfully covered by the federal privilege

and, thus, exempt from public disclosure under RCW 42.17.310(j). Because

there are insufficient facts in the record to apply this standard to all

of the disputed items in these consolidated cases, we vacate the lower

courts' rulings and remand for supplementation of the record and further

proceedings not inconsistent with this opinion.

                                   FACTS

                               Guillen

  On July 5, 1996, Ignacio Guillen's wife, Clementina Guillen- Alejandre,

was killed and her passengers injured in an automobile collision at the

intersection of 168th Street East and B Street East, in Pierce County.

Months earlier, on May 11, 1995, based on traffic and accident reports and

data in its possession, Pierce County had identified this intersection as

especially hazardous and applied for federal hazard elimination funds

under 23 U.S.C. § 152. That application was denied. The County then

reapplied on April 3, 1996, and on July 26, 1996, three weeks

after Guillen-Alejandre's fatal accident, the application was

granted.

  A letter dated August 16, 1996, was sent on Guillen's behalf to the

County's Risk Management Department, requesting materials and data

relating to the intersection's accident history. The county prosecuting

attorney's office denied the request in a letter dated September 9, 1996,

claiming the history was privileged under 23 U.S.C. § 409 and RCW

42.17.310(j). In a letter dated October 28, 1996, counsel for Guillen

clarified his request: "I want to make the record clear that we are not

seeking any reports that were specifically written for developing any

safety construction improvement project at the intersection at issue."

Clerk's Papers (CP) at 93.

  However, on behalf of our clients, we are seeking a copy of all

  documents that record the accident history of the intersection

  that may have been used in the preparation of any such reports.

  In other words, we are simply seeking information as to when

  accidents have occurred at the intersection for the last ten

  years. This would include any documents that record (1) the

  date of any such accidents, (2) the parties involved at each

  such accident, (3) the date of each such accident [sic], (4)

  fatalities, if any, at each such accident, (5) the

  identification of all known accidents [sic] at each such

  accident, (6) copies of photographs taken at each such

  accident, (7) the configuration of the intersection (what

  traffic signs existed) at the time of each such intersection

  [sic], and (8) documents recording traffic counts at the

  intersection.

  Obviously, the documents we are requesting would not contain

  any opinions by Pierce County representatives as to the safety

  of the intersection. Instead, we are seeking documents

  pertaining to facts.



Id. at 93-94. In a letter dated November 12, 1996, the County

reiterated its refusal to release any of the requested materials or

factual data relating to the intersection other than a simple traffic

count, claiming that these were privileged under 23 U.S.C. § 409, since

they represented "data the County has compiled for the sole purpose of

identifying[,] evaluating or planning the safety enhancement of potential

accident sites, hazardous roadway conditions or for developing highway

safety construction improvement projects" pursuant to section 152. CP at 96.



  A. Public Disclosure Request: On December 9, 1996, Guillen

challenged that denial of access in Pierce County Superior Court in a

complaint filed under RCW 42.17.340 of the public disclosure act (PDA).

The County moved for summary judgment under 23 U.S.C. § 409 and RCW

42.17.310(j). Guillen filed a cross-motion for summary judgment. The trial

court denied the County's motion, but granted Guillen's cross- motion,

ordering the County to pay attorney fees under RCW 42.17.340(4) and to

disclose the following materials:

  1. Motor vehicle traffic accidents by location-County of

  Pierce-prepared by Records Section, Washington State Patrol

  [WSP], 1/90 - 6/30/96.

  . . .

  10. Collision diagram dated 1/5/89 prepared by Georgia

  Fischer.

  11. Collision diagram dated 7/18/88 prepared by Georgia

  Fischer.

  . . .

  13. Police Traffic Collision Reports and Motor Vehicle Reports

  from 1/1/90 prepared by [various] law enforcement agencies.

  . . .

  15. Draft letter to Barbara Gelman from Frederick L. Anderson

  with note to file signed by Jim Ellison on 3/6/89.



CP at 20-21. /1  The County sought appellate review of the trial court's

PDA ruling. /2



  B. Civil Discovery Request: While that appeal was still pending,

Guillen filed a separate tort action in Pierce County Superior Court,

claiming that the County's failure to install proper traffic controls at

the intersection was a negligent proximate cause of his wife's death. When

the County responded to his interrogatories by invoking 23 U.S.C. § 409

and RCW 42.17.310(j), Guillen moved to compel, whereupon the County moved

for a protective order. The court granted Guillen's motion, denied the

County's, and ordered pretrial discovery of the following materials and

data:

  1. The identity of all employees, agents, or officials of

  Defendant Pierce County who have knowledge of automobile

  accidents taking place at the intersection at issue for the

  time period January 1, 1990 through July 4, 1996;

  2. The identity of all persons within Pierce County's

  knowledge who have been involved in automobile accidents at the

  intersection at issue for the time period of January 1, 1990

  through July 5, 1996;

  3. The identity of all Pierce County deputy sheriffs who

  patrolled the intersection at issue during the time frame of

  January 1, 1990 through July 4, 1996;

  4. The date, identity of all persons involved, and the

  identity of all fatalities for each automobile accident

  occurring at the intersection at issue for the time period of

  January 1, 1990 through July 5, 1996;

  5. A copy of all photographs[] Pierce County has in its

  possession, control or custody of accidents involving at least

  one automobile at the intersection at issue from January 1,

  1990 through July 6, 1996;

  6. A copy of all written statements by witnesses to

  accidents at the intersection at issue that occurred during the

  time period of January 1, 1990 through July 6, 1996; and

  7. A copy of all accident reports sent to Pierce County from

  individuals who had been involved in automobile accidents at

  the intersection at issue from January 1, 1990 through July 4,

  1996.



Amended Order Granting Pls.' Mot. to Compel Disc. at 1-2.

  On December 7, 1998, the County successfully moved the Court of Appeals

for discretionary review and for consolidation of the case with Guillen's

appeal of the PDA ruling. The Court of Appeals issued its decision on

August 6, 1999, holding that the 23 U.S.C. § 409 privilege covered only

one of the disputed items. Accident reports were not covered,

the court ruled, since "Guillen carefully requested reports in the hands

of the sheriff or other law enforcement agencies, not reports or

data `collected or compiled' by the Public Works Department `pursuant to'

Section 152." Guillen v. Pierce County, 96 Wn. App. 862, 873,

982 P.2d 123 (1999). In the final footnote of its opinion, though, the

court raised a more fundamental question regarding the constitutionality

of § 409 as amended in 1995:

  It is arguable that Congress lacks the authority to dictate

  rules of discovery and rules of admissibility for use in

  state court. In particular, it is at least arguable

  that Congress lacks the authority to tell this state, or any

  state, that it "shall not" disclose or admit, in state

  court litigation, "reports . . . or data compiled or collected"

  by a state agency (e.g., Pierce County's Public Works

  Department). Throughout this opinion, we have assumed

  that section 409 is constitutional, because neither party has

  raised or briefed that question.



Guillen, 96 Wn. App. at 875 n.26. We granted review on January

5, 2000.



                                Whitmer

  On August 8, 1996, a Ford Taurus driven by petitioner Chin Yuk and owned

by petitioner Chang Choi turned from 75th Street West onto Custer Road in

Lakewood and collided with a Volkswagen being driven by respondent Denel

Whitmer along Custer Road. The intersection was designed with a stop sign

on 75th Street, but none on Custer Road for through traffic. Both Denel

and her sister Shana Whitmer, a minor, were knocked unconscious and later

diagnosed as having sustained brain injuries.

  The Whitmer family filed a tort claim against, inter alia, the City of

Lakewood and Pierce County for negligent operation of the intersection.

In response to interrogatories requesting copies of publicly held

materials relating to that intersection's traffic and accident history,

the petitioners claimed such materials were privileged under 23 U.S.C. §

409. The Whitmers moved to compel discovery. On August 27, 1998, the

trial court denied the Whitmers' motion, ruling that local governments

had standing to invoke § 409 and that the privilege covered all of the

disputed materials. However, on February 11, 2000, the court reversed its

ruling, based on the Guillen decision, concluding that

none of the following documents was covered by the § 409

privilege:

  [Section 409 Privilege] Claimed by Pierce County:

  1. Multi-file Inventory Listing Detail: Computer Print out

  of accident information that would be retained in computer

  file.

  2. Accident Reports - Dated: 9/24/90, 7/21/93, 1/6/96,

  6/11/90, 6/9/93, 3/28/90, 5/14/93, 11/13/91, 12/17/94, 9/25/92,

  10/11/94, 4/24/92, 9/20/94, 7/31/90, 8/31/94, 4/2/91, 4/29/94,

  12/11/92, 2/17/94, 9/25/92, 1/21/94, 9/3/92, 12/9/95, 7/27/92,

  12/1/95, 4/24/92, 9/19/95, 3/13/92, 8/22/95, 2/25/92, 3/20/95,

  9/24/93, 2/12/95, 4/2/93, 3/11/93, 4/7/93, 10/4/95, 10/6/95,

  1/29/93, 4/20/92, 6/2/93, 11/23/94, 12/10/94, 1/27/90, 2/5/90,

  4/7/93, 4/30/92, 5/7/92, 5/22/90, 8/4/92, 8/30/90, 11/1/91,

  11/15/90, 11/21/91.

  3. Computer Printout Pages 1990-1996; from 8/8/97 and

  7/16/97; containing summary information on dates of accidents.

  4. Response to citizen complaint letter: original letter

  from Margaret Smith to Thomas Ballard; response letter, date

  2/8/91 from Thomas Ballard to Margaret Smith concerning light

  and fixing cost of light at approximately $125,000.

  5. Table 1 - 24 - Vehicular Traffic Evaluations and Traffic

  Signal Warrant Evaluation.

  6. Pierce County Public Works Signal Warrant Form.

  7. Vehicle Volume Summaries - Dated: 12/11/90, 8/1/88,

  11/7/95, 11/8/95, 9/30/93, 7/18/89, 9/21/95, 9/20/95, 6/7/94,

  10/14/93, 7/14/92, 10/25/90, 7/18/91, 7/20/89, 7/25/9 [sic],

  11/28/95, 7/14/92.

  8. State of Washington Urban Arterial Board Project

  Prospectus, revised 1/6/69.

  9. Pierce County Six-Year Plans - 1990-1996.

  [Section 409 Privilege] Claimed by City of Lakewood:

  1. Memo; 5/14/96; from Rory Grindley, Associate Traffic

  Engineer; to Bill Larkin, Engineering Manager, City of

  Lakewood; regarding Pierce County Public Works and Utilities

  Transportation Service Traffic Division Review of McDonald's

  Restaurant Traffic Impact Analysis.

  2. Private Traffic Impact Analysis for Chevron at 74th

  Street West and Lakewood Drive; 2/13/96.

  3. 75th Street W. and Custer Road (Lakewood Drive)

  Intersection Evaluation (augmenting Private Traffic Impact

  Analysis, supra #2); 4/10/96.

  4. Private Traffic Impact Analysis for McDonald's at 75th

  Street W. and Lakewood Drive; 4/30/96.

  5. Handwritten extract of accident data for 75th Street W.

  and Custer Road and for the Curve between 74th Street West and

  75th Street West for the years of 1994, 95, and 96.

  6. Fax cover sheet; 2/12/97; from Grindley; to Larkin;

  transmitting Pierce County Level of Service calculations for

  74th Street West and Lakewood Drive plus "assumed signal timing

  info used."

  7. Handwritten notes and diagram of Custer Road at Lakewood

  Drive to 75th Street W. showing "ADT COUNTS PM Peak". 1 page.

  8. City of Lakewood Six Year Comprehensive Transportation

  Program: Amended 1997 & 1998 - 2003.

  9. Documents associated with the Urban Arterial Trust

  Account (UATA)

    ú Urban Program Application: including "Transportation Improvement

      Board Funding Application Arterial Inventory Sheet" (two types:

      representing before and after the project).

    ú Attachment A -Accident Reduction & Annual Benefit" pert[ai]ning to

      intersection of 75th Street W. and Lakewood Drive.

    ú "Attachment B - Annual Benefit Summary Sheet."

    ú "Transportation Improvement Board controlled Intersection Data

      Continuation Sheet:" (two types: one pertaining to the intersection of

      75th Street W. and Custer Road and one pertaining to both that

      intersection and the intersection of Lakewood Drive and Custer Road).



CP at 440-41. The trial court also ruled that the § 409 privilege did not

cover other requested materials identified as "photographs," "notes,"

"letters," "memoranda," "bid sheets," "traffic signal priority array

summaries," and "cross reference sheets." CP at 443-45. /3  We granted

direct review in Whitmer, consolidated it with Guillen,

and requested supplemental briefing from all parties on issues relating

to § 409's constitutionality.



                                    ISSUES

  (1)  Whether Washington law bars disclosure or discovery of accident

reports.

  (2)  Whether materials and data sought by the respondents in these

cases were "compiled or collected" pursuant to 23 U.S.C. § 152 such that

they would be covered by the federal privilege established by 23 U.S.C. §

409 as amended by Congress in 1995.

  (3)  Whether Congress exceeded its enumerated powers under the United

States Constitution by barring state and local courts from allowing

discovery of, or admitting into evidence, collections of state and local

traffic and accident materials and data originally created and collected

for state or local purposes and essential to the proper adjudication of

claims brought under state or local law, simply because such materials

and raw facts are also collected and used pursuant to a federal

mandate to identify especially hazardous traffic sites.

  (4)  Whether Guillen is entitled to attorney fees under the Public

Disclosure Act.



                                ANALYSIS

  We conduct de novo review of summary judgment rulings, considering all

facts and reasonable inferences in the light most favorable to the

nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings,

125 Wn.2d 337, 341, 883 P.2d 1383 (1994).



                                   I

  First, we examine whether Guillen's disclosure claims pertaining to

accident reports are resolvable under Washington law. /4  In November

1972, Washington voters approved Initiative Measure No. 276, a "strongly

worded mandate for broad disclosure of public records." Spokane

Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 33-36, 769 P.2d

283 (1989). See Laws of 1973, ch. 1. "Public record" includes

"any writing containing information relating to the conduct of government

or the performance of any governmental or proprietary function prepared,

owned, used, or retained by any state or local agency regardless of

physical form or characteristics." RCW 42.17.020(36). While "mindful of

the right of individuals to privacy and of the desirability of the

efficient administration of government, full access to information

concerning the conduct of government on every level must be assured as a

fundamental and necessary precondition to the sound governance of a free

society." RCW 42.17.010(11). In 1992, the following public policy

statement was added to the PDA's "Public Records" section:

  The people of this state do not yield their sovereignty to the

  agencies that serve them. The people, in delegating authority,

  do not give their public servants the right to decide what is

  good for the people to know and what is not good for them to

  know. The people insist on remaining informed so that they may

  maintain control over the instruments that they have created.

  The public records subdivision of this chapter shall be

  liberally construed and its exemptions narrowly construed to

  promote this public policy.



RCW 42.17.251. Thus, as we have previously noted, the PDA's intent was

  nothing less than the preservation of the most central tenets

  of representative government, namely, the sovereignty of the

  people and the accountability to the people of public officials

  and institutions. RCW 42.17.251. Without tools such as the

  Public Records Act, government of the people, by the people,

  for the people, risks becoming government of the people, by the

  bureaucrats, for the special interests. In the famous words of

  James Madison, "A popular Government, without popular

  information, or the means of acquiring it, is but a Prologue to

  a Farce or a Tragedy; or, perhaps both." Letter to W.T. Barry,

  Aug. 4, 1822, 9 The Writings of James Madison 103

  (Gaillard Hunt, ed. 1910).



Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243,

251, 884 P.2d 592 (1994).

  In any public disclosure dispute, the government bears the burden "to

establish that refusal to permit public inspection and copying is in

accordance with a statute that exempts or prohibits disclosure in whole

or in part of specific information or records." RCW 42.17.340(1). /5

Pierce County claims that the materials at issue in Guillen are

exempt from public disclosure under RCW 42.17.260(1):

  Each agency, in accordance with published rules, shall make

  available for public inspection and copying all public records,

  unless the record falls within the specific exemptions

  of subsection (6) of this section, RCW 42.17.310,

  42.17.315, or other statute which exempts or prohibits

  disclosure of specific information or records.



RCW 42.17.260(1) (emphasis added). /6

  Section (j) of RCW 42.17.310, referenced in .260(1), exempts from public

disclosure any "[r]ecords which are relevant to a controversy to which an

agency is a party but which records would not be available to another

party under the rules of pretrial discovery for causes pending in the

superior courts." While there was no pending superior court cause stemming

from the death of Guillen's wife and injuries to her passengers when he

made his PDA request, we have recognized that the PDA "was not intended to

be used as a tool for pretrial discovery[,]" Limstrom v.

Ladenburg, 136 Wn.2d 595, 614 n.9, 963 P.2d 869 (1998), and have

accordingly construed the term "controversy" in RCW 42.17.310(j) as

inclusive of past and present litigation as well as "reasonably

anticipated" litigation. See Dawson v. Daly, 120 Wn.2d 782, 791,

845 P.2d 995 (1993). Given the factual circumstances here, we find that

litigation involving Pierce County as a party was reasonably anticipated

at the time of Guillen's PDA request. Thus, any materials that would be

nondiscoverable in that anticipated litigation under "rules of pretrial

discovery for causes pending in the superior courts," such as CR 26(b),

would also be exempt from public disclosure under RCW 42.17.310(j).



  Confidentiality of "Accident Reports": We next consider whether

accident reports are subject to PDA requests. The Court of Appeals held

that "[t]he trial court properly granted Guillen's requests to disclose

. . . (d) accident reports sent to the County from citizens involved in

accidents at the intersection." Guillen, 96 Wn. App. at 874. Had

that ruling been made solely in the context of a PDA lawsuit, it would

have been in error. RCW 46.52.080 specifically provides:

  All required accident reports and supplemental reports and

  copies thereof shall be without prejudice to the individual so

  reporting and shall be for the confidential use of the county

  prosecuting attorney and chief of police or county sheriff, as

  the case may be, and the director of licensing and the chief of

  the Washington state patrol, and other officer or commission as

  authorized by law, except that any such officer shall disclose

  the names and addresses of persons reported as involved in an

  accident or as witnesses thereto, the vehicle license plate

  numbers and descriptions of vehicles involved, and the date,

  time and location of an accident, to any person who may have a

  proper interest therein, including the driver or drivers

  involved, or the legal guardian thereof, the parent of a minor

  driver, any person injured therein, the owner of vehicles or

  property damaged thereby, or any authorized representative of

  such an interested party, or the attorney or insurer thereof.

  No such accident report or copy thereof shall be used as

  evidence in any trial, civil or criminal, arising out of an

  accident [with certain exceptions not relevant here].



  We have held that the phrase "accident reports and supplemental reports"

in RCW 46.52.080 refers to reports prepared pursuant to RCW 

46.52.030 (1)

or .040 by persons involved in the accidents, not to official "police

officer's reports" or "investigator's reports" prepared pursuant to RCW

46.52.030 (3) or .070. /7  Superior Asphalt & Concrete Co. v. Dep't of

Labor & Indus., 19 Wn. App. 800, 806, 578 P.2d 59 (1978) (noting RCW

46.52.080 "mandates confidentiality of reports made by persons involved in

an accident") (citing Gooldy v. Golden Grain Trucking Co.,

69 Wn.2d 610, 419 P.2d 582 (1966)). While these "accident reports" themselves

are for the confidential use of certain public officials and exempt from

public disclosure, RCW 46.52.080 and .083 entitle parties having "a proper

interest" in the accident to disclosure of certain basic data contained in

those reports. Guillen, however, does not qualify, since the statute's

examples of qualifying parties clearly indicate a restricted understanding

of "proper interest" that cannot reasonably be construed to include

persons involved in entirely different accidents at the same location. /8



  Discovery of "Accident Reports": Still, simply because such

accident reports are "confidential" and not subject to PDA requests does

not mean they are "privileged" in the sense of being immune from CR 26,

Washington's broad civil discovery rule. In Mebust v. Mayco Mfg.

Co., 8 Wn. App. 359, 506 P.2d 326 (1973), the court held that the

"confidential" statutory status of certain documents "does not place them

beyond the reach of any judicial process." Id. at 361. /9

It is certainly true that, under RCW 46.52.080, accident reports are

"privileged" in the sense that they are inadmissible as evidence

at trial. RCW 46.52.080 expressly provides, "No such accident report or

copy thereof shall be used as evidence in any trial, civil or criminal,

arising out of an accident." /10  But the very fact that this statute

expressly bars admission of these reports as evidence at trial without

also barring their pretrial discovery is strong indication that such

reports are not "privileged" in the sense of being exempt from CR

26(b)(1). We hold that there is no state law precluding Guillen from

being granted pretrial discovery in his tort case of relevant "(d)

accident reports sent to the County from citizens involved in accidents

at the intersection." Guillen, 96 Wn. App. at 874.



                                     II

  Secondly, we examine petitioners' claim that the accident reports and

other materials and data in Guillen and Whitmer were

"compiled or collected" pursuant to 23 U.S.C. § 152 such that they would

be covered by the federal privilege established by 23 U.S.C. § 409 as

amended by Congress in 1995. The burden of showing that a privilege

applies in any given situation rests entirely upon the entity asserting

the privilege. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148

(1964). In its present form, § 409 reads:

  Notwithstanding any other provision of law, reports, surveys,

  schedules, lists, or data compiled or collected for the purpose

  of identifying, evaluating, or planning the safety enhancement

  of potential accident sites, hazardous roadway conditions, or

  railway-highway crossings, pursuant to sections 130, 144, and

  152 of this title or for the purpose of developing any highway

  safety construction improvement project which may be

  implemented utilizing Federal-aid highway funds shall not be

  subject to discovery or admitted into evidence in a Federal or

  State court proceeding or considered for other purposes in any

  action for damages arising from any occurrence at a location

  mentioned or addressed in such reports, surveys, schedules,

  lists, or data.



  Legislative Background of § 409: The application of § 409 is a

question of first impression for this court. Other than Guillen,

there appears to be no Washington, Ninth Circuit, or United States

Supreme Court case law involving § 409. We begin our analysis by

examining 23 U.S.C. § 152, entitled "Hazard elimination program," one of

the three provisions /11  referenced in § 409:

  Each state shall conduct and systematically maintain an

  engineering survey of all public roads to identify hazardous

  locations, sections, and elements, including roadside obstacles

  and unmarked or poorly marked roads, which may constitute a

  danger to motorists, bicyclists, and pedestrians, assign

  priorities for the correction of such locations, sections, and

  elements, and establish and implement a schedule of projects

  for their improvement.



  This 1973 statute apparently had a side effect not intended by Congress.

By forcing state and local governments to identify all "public roads" that

"may constitute a danger to motorists, bicyclists, and pedestrians," and

to rank the most hazardous among them in writing, Congress

accorded private tort plaintiffs an added advantage in their

efforts to prove negligent governmental design or maintenance of certain

traffic sites. In 1987, Congress enacted 23 U.S.C. § 409 at least in part

to address this problem. /12  Although Congress provided no statement of

legislative intent, courts have concluded that § 409 was designed to

prevent §§ 130, 144 and 152 "from providing an additional,

virtually no-work tool for direct use in private litigation," Light v.

State, 560 N.Y.S.2d 962, 965, 149 Misc. 2d 75 (Ct. Cl. 1990)

(emphasis added); see also Perkins v. Ohio Dep't of Transp., 65

Ohio App. 3d 487, 584 N.E.2d 794, 802 (1989), /13  and to "`facilitate

candor in administrative evaluations of highway safety hazards'" and in

the implementation of federally funded safety enhancements. Robertson

v. Union Pac. R.R., 954 F.2d 1433, 1435 (8th Cir. 1992) (quoting

Duncan v. Union Pacific R.R., 790 P.2d 595, 597 (Utah 1990)). /14



  Early § 409 Case Law: For the next several years, most state

courts restricted the application of the federal privilege established in

§ 409 to "reports, surveys, schedules, lists, or data" that had been

specifically created for the purpose of applying for federal

safety improvement funding or implementing a funded project. Such

decisions often relied on the admonition in United States v.

Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), that

privileges are "exceptions to the demand for every man's evidence" and

are therefore "not lightly created nor expansively construed, for they

are in derogation of the search for truth." Id. at 710. /15

These courts voiced strong objection to application of a federal

privilege in § 409 to traffic and accident materials and raw data

prepared for state and local purposes simply because they were

also "collected" for uses related to §§ 130, 144 and 152, an

unacceptable outcome ridiculed as "imprudent" /16  and "anomalous." /17

  Shortly after § 409 was enacted, a Louisiana trial court construed the

privilege broadly to include "`all information gathered pursuant

to the federal programs covered by this statute.'" Martinolich v. S.

Pac. Transp. Co., 532 So. 2d 435, 437 (La. Ct. App. 1988) (emphasis

added), writ denied, 535 So. 2d 745 (La. 1989), cert. denied

sub nom. La. Dep't of Transp. & Dev. v. Martinolich, Inc., 490 U.S.

1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1027 (1989). But that ruling was

promptly vacated as "clearly wrong." Id. Stressing the heavy

presumption against federal preemption in an area of law traditionally

occupied by states such as "regulation of [a state] court system,"

id. at 438, the Louisiana Court of Appeals adopted a more

conservative understanding of § 409:

  Clearly Congress has not endeavored, by way of this

  statute [§ 409], to occupy the field of Louisiana's evidentiary

  rules or our Code of Civil Procedure. Where Congressional

  enactments do not exclude all state legislation in the field,

  preemption is to the extent of the conflict between them. . . .

  Because preemption is not presumed, we construe 23 U.S.C. § 409

  restrictively, to intrude only so much as Congress has

  expressly prescribed.



Id. A few years later, Louisiana's Supreme Court issued

Wiedeman v. Dixie Electric Membership Corp., 627 So. 2d 170 (La.

1993), cert. denied, 511 U.S. 1127 (1994). Consistent with §

409's perceived legislative purpose, the Wiedeman court ruled

that the privilege covered only the following materials:

  (1)  surveys to identify hazardous railroad crossings and improve them

    (§ 130);

  (2)  applications for federal assistance in replacing or rehabilitating

    highway bridges (§ 144);

  (3)  studies assigning priorities and schedules of projects for highway

    improvement (§ 152); and,

  (4)  other compilations made for developing highway safety construction

    projects which would utilize Federal-aid funds (§ 409).



Id. at 173. The court flatly rejected, though, the "expansive

interpretation that would protect data and raw facts," ruling

that the § 409 privilege did not include "(1) accident reports;

(2) traffic counts; and (3) other raw data collected by" the

governmental agency responsible for identifying and evaluating good

candidates for safety enhancement grants. Id. (emphasis added).

"Section 409 creates a privilege for compilations enumerated in the

statute, but the privilege does not extend to reports and data gathered

for or incorporated into such compilations." Id. /18

  In Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659

N.E.2d 817 (1995), the Ohio Court of Appeals agreed with the reasoning of

Louisiana's courts, rejecting a railroad company's contention that an

expert affidavit describing the number and nature of prior accidents at

the railway crossing in question was privileged under § 409:

  If a dozen people had been killed at a site, a trier of fact

  might reasonably infer that the site was dangerous. These dozen

  deaths would naturally be included in statistics gathered for

  inclusion in official reports made pursuant to Section 409. The

  question then becomes: Does the fact that information of

  previous accidents at a site is included in reports made under

  Section 409 make all evidence of the previous accidents

  inadmissible? We think not. If all accidents are reported and

  no evidence of prior reported accidents is admissible, a

  plaintiff could never meet the burden of proof under [Ohio tort

  law]-an anomalous result.



Id. at 820.

  In Kitts v. Norfolk & W. Ry., 152 F.R.D. 78 (S.D. W. Va. 1993), a

West Virginia court also construed § 409 narrowly, explaining that the

privilege "clearly does not accord protection for documents or

data prepared or compiled for some entirely separate and distinct purpose,

even if the contents of the same, or parts thereof, eventually

become ingredients thrown into a soup kettle with a distinct flavor of

safety enhancement." Id. at 81 (emphasis added).

  Meanwhile, in Arizona, a wrongful death claim was filed after a train

collided with a milk truck driven by Mary Isbell's husband at an

uncontrolled railroad crossing. S. Pac. Transp. Co. v. Yarnell,

181 Ariz. 316, 890 P.2d 611, 612 (1995). "The state and Southern Pacific

argued that [§ 409] exempted from discovery not only the reports,

surveys, schedules, lists, or data compilations made for the purposes

identified in the statute, but also all the facts in those reports even

if available from other sources." Id. The trial court granted

the plaintiff's motion to compel, concluding that § 409 "only protected

the reports themselves, and not the underlying facts." Id.

Arizona's Supreme Court agreed:

  Construing the statute to cover all facts that ultimately end

  up in such compilations, from whatever source derived, would go

  far beyond protecting the safety enhancement process and indeed

  would turn that process on its head. It would prevent the

  parties from proving claims that could otherwise have been

  proven had there been no safety enhancement project. The

  [United States] Supreme Court has held that the federal

  railroad safety enhancement program does not preempt state

  damage claims.

  But state damage claims can only be proved with facts. . .

  . [T]he breadth of exemption from discovery and

  admissibility argued by Southern Pacific and the state, and

  acknowledged by the court of appeals, would sacrifice the state

  tort scheme on the altar of the federal statutory

  scheme.



Id. at 613 (emphasis added) (citing CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387

(1993)). /19  Observing that each of the key terms in § 409-"reports,"

"surveys," "schedules," "lists" and "data"-corresponds to a specific term

of art used in §§ 130, 144, and 152, /20  the court held "that the

documents exempt from discovery and excluded from evidence under § 409

are precisely the documents described and prepared under the authority of

§§ 130, 144, and 152, and no others." Id. at 614. By excluding

from the privilege all facts and materials "that ultimately end up in

such compilations," the court explained that it hoped to "promote the

integrity of the federal regulatory scheme without compromising the

integrity of the parallel state tort system." Id. at 614-15. /21



  1995 Amendment to § 409: The United States Congress evidently

disagreed with such restricted readings of § 409 by state courts, and in

1995 amended the statute by inserting two words after the word "compiled":

"or collected." Lest there be any doubt regarding its intentions in doing

so, Congress published an accompanying "clarification" in the

Congressional Record:

  This section amends section 409 of title 23 to clarify that

  data "collected" for safety reports or surveys shall

  not be subject to discovery or admitted into evidence in

  Federal or State court proceedings.

    This clarification is included in response to recent

  State court interpretations of the term "data compiled" in the

  current section 409 of title 23. It is intended that

  raw data collected prior to being made part of any

  formal or bound report shall not be subject to discovery or

  admitted into evidence in a Federal or State court proceeding

  or considered for other purposes in any action for damages

  arising from any occurrence at a location mention[ed] or

  addressed in such data.



H.R. Rep. 104-246 § 328, at 59 (1995) (emphasis added); see Act

of Nov. 28, 1995, Pub. L. No. 104-59, 1995 U.S.C.C.A.N. (109 Stat.) 591.



  State Court Resistance: It is a well-recognized rule of

statutory construction that "where a law is amended and a material change

is made in the wording, it is presumed that the legislature intended a

change in the law." Home Indem. Co. v. McClellan Motors, Inc.,

77 Wn.2d 1, 3, 459 P.2d 389 (1969) (citing Alexander v.

Highfill, 18 Wn.2d 733, 140 P.2d 277 (1943)). However, despite

Congress' 1995 amendment and "clarification," a few state courts have

understandably remained reluctant to construe § 409 in a manner that

effectively creates a legal black hole into which state and local

governments can drop virtually all accident materials and facts, simply

by showing that such materials and "raw data" are also

"collected" and used to identify and rank candidates for federal

safety improvement projects statewide, pursuant to § 130, 144, or 152.

See, e.g., Palacios v. La. & Delta R.R., 82 So. 2d 806 (La. Ct.

App. 1996) (relying on Wiedeman despite Congress' 1995

amendment), vacated, 740 So. 2d 95 (La. 1999) (recognizing

Congress' intent in 1995 to extend the § 409 privilege to all "collected"

data); Isbell ex rel. Isbell v. State, 198 Ariz. 291, 9 P.3d 322

(2000) (rejecting claims that Congress' 1995 amendment had undermined its

narrow Yarnell decision). /22  Still, most state courts have

considered themselves obligated by the Supremacy Clause to try to absorb

the "harsh" impact on state and local courts of § 409 as amended in 1995.

Coniker v. State, 695 N.Y.S.2d 492, 495, 181 Misc. 2d 801

(1999). /23

  Statutory Application: We turn to the materials at issue in

these consolidated cases to determine whether they were "compiled or

collected" pursuant to § 152 such that they would be covered by the § 409

privilege as amended in 1995.

  According to sworn declarations in the record, even prior to the

accident that killed Guillen's wife, Pierce County had specifically

collected and reviewed all the disputed accident reports, photos, witness

statements, collision diagrams, and other traffic and accident data

relating to the intersection of 168th Street East and B Street East and

had then sought § 152 funding to enhance its safety. Mot. for

Discretionary Review, App. 8, Ex. A, Decl. of Thomas Ballard at 2.

According to Thomas Ballard, Pierce County's Engineer, § 152 safety

enhancements were specifically designed for that intersection, and all

disputed items in Guillen "are reports and data compiled for

those purposes." Id. Prospectuses compiled based on those

collected traffic and accident materials and data were then sent to

Washington's Department of Transportation (DOT) "in application for

federal-aid highway funds available under 23 U.S.C. § 152." Id.

  The "public road" at issue in Whitmer, while also eligible for

consideration under § 152, /24  had not previously been the subject of an

application for § 152 funds. The petitioners contend, however, that §

152's record-keeping mandate was one of the reasons they

maintained their collections of accident reports, accident photos,

correspondence, and other raw data relating to that intersection, and

that those materials are therefore protected by the § 409 privilege. In a

sworn declaration filed in Whitmer, Ballard explained how

applications for federal § 152 funding are made in practice:

  I have directed my employees to collect and compile reports,

  surveys, schedules, lists, and other data for the purpose of

  identifying, evaluating, or planning the safety enhancement of

  potential accident sites or hazardous roadway conditions

  pursuant to 23 U.S.C. 152 within unincorporated Pierce County

  which prior to incorporation [by Lakewood in 1996] included the

  intersection of Custer Road and 75th street.

  . . .

  When a new allotment of section 152 money becomes available,

  the state gives localities such as Pierce County a deadline for

  identifying roads which are candidates for such funding. As

  part of the application process, localities need to provide the

  state specific information about the road in question, which

  helps the state and federal government prioritize the project

  and determine whether section 152 funds should be used for the

  given project. The information on the application includes

  traffic accidents, traffic counts, narrative descriptions of

  location, the proposed solutions[,] etc.[,] for the roadway in

  question. The time frame between notification that section 152

  funding is available, and the deadline for the application

  process, is limited, requiring localities to have studies,

  reports, and data readily available for purposes of seeking

  section 152 funding.



CP at 292-93. According to a Deputy Assistant Secretary at the Washington

State Department of Transportation (WSDOT) who supervised § 152 federal

hazard elimination grant applications:

  The state requires Pierce County and all other counties[] to

  designate a primary road system within their counties, and to

  classify roads based on the volume of traffic, speeds, etc.[]

  The counties are required to monitor these roads and to collect

  data, reports and studies so as to determine whether a

  particular roadway is an appropriate candidate for funding

  under 23 USC § 152, so as to enhance its safety. The

  intersection of Custer Road and 75th Street is included within

  this system, and is eligible for consideration of § 152

  funding. The reports, studies, data, etc. compiled for this

  intersection are considered when evaluating the roads

  throughout the state which are eligible for § 152 funding and

  are prioritized accordingly.



CP at 296, Decl. of Wayne T. Gruen, P.E., at 2.

  Based upon these sworn declarations in the record, the accident

reports, photos, collision diagrams, and other related materials and "raw

data" sought by the respondents in these consolidated cases would appear

to be covered by § 409 as amended in 1995. We simply cannot

accept the Court of Appeals' distinction in Guillen between

collections of traffic and accident related materials and raw data "as

held" by Pierce County's Public Works Department, a local

government agency involved in "section 152 activity," and collections of

traffic and accident related materials and raw data "as held" by Pierce

County's Sheriff's Office, which the court presumed was in no

way involved in "section 152 activity." 96 Wn. App. at 871. We find such

a distinction unsound in principle and unworkable in practice.

  Congress' 1995 amendment made clear that § 409 covers all "reports"

and "raw data" publicly "collected" for, inter alia, the § 152 purpose of

"identify[ing] hazardous locations, sections, and elements . . . , which

may constitute a danger to motorists, bicyclists, and pedestrians[.]" 23

U.S.C. § 152. Since no one can predict ahead of time which

"locations, sections, and elements" will distinguish themselves over time

as especially "danger[ous] to motorists, bicyclists, and pedestrians" and

therefore good candidates for federal safety enhancement funds, § 152

requires jurisdictions to "systematically maintain" complete,

ongoing collections of all accident related materials and data

on "all public roads." 23 U.S.C. § 152. Thus, § 152's record-keeping

mandate requires that Pierce County maintain not only accident materials

and data on traffic sites that its Public Works Department has

already identified as good candidates for § 152 safety

enhancement funds, such as the intersection in Guillen, but also

accident materials and data relating to traffic sites that its Public

Works Department has not yet identified as hazardous, such as

the intersection in Whitmer. All such records are "collected"

pursuant to § 152.

  Furthermore, it cannot be assumed that all state and local governments

maintain multiple sets of materials such as accident reports,

each held by a separate agency for a different use. While larger

jurisdictions might "systematically maintain" one set of accident reports

at their law enforcement department and a second set at their "Department

of Transportation," or "Public Works Department," smaller jurisdictions

would likely have one collection of accident reports, photos, and

witness statements prepared by their law enforcement personnel, which

would be consulted from time to time to identify especially hazardous

sites, as mandated by § 152.

  Applying § 409 only to accident reports "as held" by one agency

of a local government but not "as held" by another, and only to

copies of a report but not to originals, is also unsound

and unworkable given the fact that such legal distinctions are already

being rendered meaningless by the electronic revolution underway. As

governments everywhere move from paper and microfiche documentation into

the age of twenty-first century information technology, public records are

increasingly being stored-even created-in digital

format, then added to virtual databases that are accessed, in streams of

bits and bytes, by vast networks of governmental agencies, often

across jurisdictional boundaries. Today's technology would already permit

a responding law enforcement officer to type up an electronic accident

report, complete with accident photographs, collision diagrams, and

witness statements, and instantly send those files via satellite to a

database accessible by multiple agencies for multiple purposes, only

one of which would be to identify particularly hazardous sites in

a given jurisdiction that may be good candidates for § 152 safety

enhancements.

  Under the Court of Appeals' approach, such an electronic database of

accident reports would be covered by the § 409 privilege as amended in

1995, even if it were the only existing collection of accident

reports and data, without which state and local courts could not properly

adjudicate a variety of claims brought under state and local law. Were we

to rely on the Court of Appeals' distinctions in applying the § 409

privilege, information technology would soon create a situation that the

Court of Appeals itself recognized as "absurd," namely, "giv[ing] the

County carte blanche to render immune from discovery every accident report

related to a public road within its territory[.]" Guillen, 96 Wn. App. at 872.



                                    III

  We next turn to the examination of a more fundamental question, raised by

the Court of Appeals itself in the final footnote of its Guillen

opinion, namely, whether the United States Constitution entitles Congress

to "tell this state, or any state, that it `shall not' disclose or admit,

in state court litigation, `reports . . . or data compiled or

collected' by a state agency (e.g., Pierce County's Public Works

Department)." 96 Wn. App. at 875 n.26. Specifically, we consider whether

the 1995 amendment to 23 U.S.C. § 409 is constitutional and thus

enforceable in state and federal courts, a question requiring analysis of

federal preemption of state law, private parties' standing to raise

federalist challenges, and the limits of Congressional power.



  (a) Express Preemption: There is a strong presumption against

federal preemption of state police powers, and such presumption is even

stronger in areas of the law where states have traditionally exercised

their sovereignty. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 79,

896 P.2d 682 (1995). Deciding what materials or data are discoverable or

admissible in cases brought in state court under state law is

unquestionably an area where states have traditionally exercised their

sovereignty. Still, "that presumption can be overcome if Congress intends

that the federal law preempt state law." All-Pure Chem. Co. v.

White, 127 Wn.2d 1, 5, 896 P.2d 697 (1995). /25

  Here, Congress clearly intended that the § 409 privilege preempt state

laws and court rules governing pretrial discovery and the admissibility

of evidence at trial. Not only does the statute begin with the words,

"Notwithstanding any other provisions of law," but it specifically

declares that the privilege is applicable in "Federal or State court."

Such language leaves no doubt that this federal statute was designed to

be expressly preemptive. See Dep't of Transp. v. Superior Court

(Tate), 47 Cal. App. 4th 852, 854, 55 Cal. Rptr. 2d 2, 4 (1996);

Martinolich v. S. Pac. Transp., 532 So. 2d at 437.

  However, state law cannot be preempted by an unconstitutional federal

law. The Supremacy Clause, U.S. Const. art. VI, cl. 2, provides:

  This Constitution, and the Laws of the United States which

  shall be made in pursuance thereof; and all treaties made, or

  which shall be made, under the authority of the United States,

  shall be the supreme law of the land; and the judges in every

  state shall be bound thereby, any thing in the Constitution or

  laws of any state to the contrary notwithstanding.



Thus, state judges are constitutionally required only to uphold "laws of

the United States which shall be made in pursuance [of the United

States Constitution]." U.S. Const. art. VI, cl. 2 (emphasis added). /26

Federal laws that exceed Congress' enumerated constitutional powers

are unenforceable in state court-just as they are in federal

court-whether or not Congress intended its laws to preempt "the

Constitution or laws of any state." Gregory v. Ashcroft, 501

U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991).



  (b) Standing: We next consider the issue of standing. Several

courts have recognized, explicitly or implicitly, that private parties

have standing to challenge the constitutionality of federal laws on

federalist grounds, even when not joined by a state government. See,

e.g., Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030, 1033 n.6

(11th Cir. 1992); Atlanta Gas Light Co. v. United States Dep't of

Energy, 666 F.2d 1359, 1369 n.16 (11th Cir. 1982) (citing

Helvering v. Davis, 301 U.S. 619, 637, 640, 57 S. Ct. 904, 81 L.

Ed. 1307 (1937); Steward Mach. Co. v. Davis, 301 U.S. 548, 573,

585, 57 S. Ct. 883, 81 L. Ed. 1279 (1937)); but see Vt. Assembly of

Home Health Agencies, Inc. v. Shalala, 18 F. Supp. 2d 355, 370-71

(D. Vt. 1998). As Justice O'Connor commented in dicta in New York v.

United States, 505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120

(1992):

  The Constitution does not protect the sovereignty of States for

  the benefit of the States or state governments as abstract

  political entities, or even for the benefit of the public

  officials governing the States. To the contrary, the

  Constitution divides authority between federal and state

  governments for the protection of individuals. State

  sovereignty is not just an end in itself: "Rather, federalism

  secures to citizens the liberties that derive from the

  diffusion of sovereign power."



Id. at 181 (quoting Coleman v. Thompson, 501 U.S. 722,

759, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (Blackmun, J.,

dissenting)).

  Where Congress exceeds its authority relative to the States,

  therefore, the departure from the constitutional plan cannot be

  ratified by the "consent" of state officials. An analogy to the

  separation of powers among the branches of the Federal

  Government clarifies this point. The Constitution's division of

  power among the three branches is violated where one branch

  invades the territory of another, whether or not the

  encroached-upon branch approves the encroachment.



New York, 505 U.S. at 182 (emphasis added). We agree with this

reasoning and hold that private respondents are not deprived of standing

to challenge the constitutionality of a federal law on federalism grounds

simply because state officials oppose the challenge.



  (c) Enumerated Powers: Finally, we examine the merits of the

federalism challenge. The final provision of the Bill of Rights

guarantees that "[t]he powers not delegated to the United States by the

Constitution, nor prohibited by it to the states, are reserved to the

states respectively, or to the people." U.S. Const. amend. X. While the

Tenth Amendment was once viewed as little more than a meaningless truism,

see United States v. Darby, 312 U.S. 100, 124, 61 S. Ct. 451, 85

L. Ed. 609 (1941), the United States Supreme Court has recently signaled

a renewed commitment to enforcing the principle of dual sovereignty

implicit in the American constitutional framework and made explicit in

the Tenth Amendment, /27  stressing that "[t]he Constitution created a

Federal Government of limited powers." Gregory, 501 U.S. at 457.

As James Madison explained prior to the Constitution's ratification:

  The powers delegated by the proposed Constitution to the

  Federal Government, are few and defined. Those which are to

  remain in the State Governments are numerous and indefinite. . . .

  The powers reserved to the several States will extend to

  all the objects which, in the ordinary course of affairs,

  concern the lives, liberties and properties of the people; and

  the internal order, improvement, and prosperity of the

  State.



The Federalist, No. 45 (James Madison) at 313 (Jacob E. Cooke ed.

1961). Alexander Hamilton predicted that federalism would enhance

America's democracy by creating additional checks and balances:

  Power being almost always the rival of power; the General

  Government will at all times stand ready to check the

  usurpations of the state governments; and these will have the

  same disposition toward the General Government. The people, by

  throwing themselves into either scale, will infallibly make it

  preponderate. If their rights are invaded by either, they

  can make use of the other, as the instrument of redress.



The Federalist, No. 28 (Alexander Hamilton) at 179 (Jacob E.

Cooke ed. 1961) (emphasis added). The Court recently remarked about

Hamilton's statements:

  One fairly can dispute whether our federalist system has been

  quite as successful in checking [Federal] government abuse as

  Hamilton promised, but there is no doubt about the design. If

  this "double security" is to be effective, there must be a

  proper balance between the States and the Federal Government.

  These twin powers will act as mutual restraints only if both

  are credible. In the tension between federal and state power

  lies the promise of liberty.



Gregory, 501 U.S. at 459. /28  Of course, as the Court noted,

  The Federal Government holds a decided advantage in this

  delicate balance: the Supremacy Clause. . . . As long as it is

  acting within the powers granted it under the Constitution,

  Congress may impose its will on the States. Congress may

  legislate in areas traditionally regulated by States. This is

  an extraordinary power in a federalist system. It is a power

  that we must assume Congress does not exercise lightly.



Id. at 460. Lightly or not, Congress has exercised this

"extraordinary power" to such an extent in the past several decades that

the highest court in the judicial branch of the federal

government has found it necessary in a string of recent cases to

invalidate laws that the federal government lacked constitutional

authority to impose on the states. /29

  While duly enacted federal legislation is presumed constitutional, that

presumption can be rebutted "upon a plain showing that Congress has

exceeded its constitutional bounds." United States v. Morrison,

529 U.S. 598, 607, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). We therefore

evaluate whether Congress acted outside its enumerated powers when it

amended 23 U.S.C. § 409 in 1995. The petitioners argue that Congress had

the power to enact the 1995 amendment under the Spending Clause, /30  the

Commerce Clause, /31  and the Necessary and Proper Clause. /32



  (1) Spending Clause: The Spending Clause entitles Congress "to

pay the debts and provide for the common defense and general welfare of

the United States." U.S. Const. art. I, § 8, cl. 1. Over the years,

Congress has often sought to influence state behavior by conditioning the

receipt of federal funds upon behavioral changes. The United States

Supreme Court has declared such a practice constitutional, see United

States v. Butler, 297 U.S. 1, 66, 56 S. Ct. 312, 80 L. Ed. 477

(1936), provided Congress' conditions are "relevant" and

"reasonably related" to a valid federal interest in a

specific national project or program. South Dakota v.

Dole, 483 U.S. 203, 208, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987).

In Dole, the Court held that 23 U.S.C. § 158 was constitutional,

finding that conditioning receipt of federal highway funds on state

enactment of minimum drinking age laws was a proper exercise of Congress'

spending power. The Court noted, though, that the "spending power is of

course not unlimited, but is instead subject to several general

restrictions articulated in our cases." Id. at 207 (citation

omitted).

  [First,] the exercise of the spending power must be in pursuit

  of "the general welfare." In considering whether a particular

  expenditure is intended to serve general public purposes,

  courts should defer substantially to the judgment of Congress.

  Second, we have required that if Congress desires to condition

  the States' receipt of federal funds, it "must do so

  unambiguously . . . ." Third, our cases have suggested (without

  significant elaboration) that conditions on federal grants

  might be illegitimate if they are unrelated "to the federal

  interest in particular national projects or programs."

  Massachusetts v. United States, 435 U.S. 444, 461[, 98

  S. Ct. 1153, 1164, 55 L. Ed. 2d 403] (1978) (plurality

  opinion). [/33]  See also Ivanhoe Irrigation Dist. v.

  McCracken, [357 U.S. 275, 295, 78 S. Ct. 1185, 2 L. Ed. 2d

  1313 (1958)], ("[T]he Federal Government may establish and

  impose reasonable conditions relevant to federal interest in

  the project and to the over-all objectives thereof"). Finally,

  we have noted that other constitutional provisions may provide

  an independent bar to the conditional grant of federal funds.



Id. at 207-08 (some citations omitted). /34

  The petitioners rely on the Spending Clause as a source of congressional

authority to enact 23 U.S.C. § 409. In Martinolich, cited

supra at 18, the Louisiana Court of Appeals applied the Dole

Court's four-part test and concluded that § 409 was authorized under the

Spending Clause:

  A state's regulation of its court system is in our opinion as

  fundamental a function of its sovereignty as the normal

  exercise of its police power even in matters concerning the

  health and safety of its citizens. Congress' intrusion, in this

  instance, however, is constitutionally permissible because

  Louisiana's participation in the federal funding scheme is

  voluntary; because the improvement of state highways with

  federal funds is in pursuit of "[providing] for the general

  welfare" as provided in U.S. Const. Art. I, § 8, cl. 1

  ("spending power"); because it is clear that participation in

  the funding program requires acquiescence to the intrusion;

  and, finally, because the intrusion is related to a valid

  federal interest (inasmuch as 23 U.S.C. § 409 encourages

  participation in a scheme that ensures, by prioritization,

  deliberative spending of federal funds).



Martinolich, 532 So. 2d at 438 (citing Dole, 483 U.S.

at 207-08). The Martinolich court, though, was asked to analyze

Congress' power to enact 23 U.S.C. § 409 in its pre-1995 form,

when by its own terms the privilege applied only to materials

specifically "compiled," or created, pursuant to §§ 130, 144,

and 152. The connection to a federal purpose was therefore clear: but-

for the federal mandates, such materials would not exist. Here, by

contrast, we must decide whether the Spending Clause authorizes Congress

to bar state courts from permitting discovery of accident reports and

other traffic and accident materials and data prepared for state and

local purposes, simply because those publicly held materials are

also "collected" and used for federal purposes. We conclude that

it does not.

  While the Spending Clause entitles Congress to offer states the option

of accepting federal funds "with strings attached"-even when those

"strings" interfere with the basic functioning of state government, as

they do here-the United States Supreme Court has made it clear that

Congress may do so only if those "strings" are also firmly "attached" to

a legitimate federal interest in a specific federal project or program.

See Dole, 483 U.S. at 208. /35  We find that no valid federal

interest in the operation of the federal safety enhancement program is

reasonably served by barring the admissibility and discovery in state

court of accident reports and other traffic and accident materials and

"raw data" that were originally prepared for routine state and local

purposes, simply because they are "collected," for, among other

reasons, pursuant to a federal statute for federal purposes.



  (2) Commerce Clause: Congress has authority "[t]o regulate

commerce . . . among the several states." U.S. Const. art. I, § 8, cl. 3.

The United States Supreme Court has repeatedly redefined the limits of

that power "as our Nation has developed." United States v.

Lopez, 514 U.S. 549, 552-57, 115 S. Ct. 1624, 131 L. Ed. 2d 626

(1995).

  In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct.

2465, 49 L. Ed. 2d 245 (1976), the Court found that Congress lacked

Commerce Clause authority to apply the Fair Labor Standards Act's federal

minimum wage and maximum hour provisions to state and local government

employees, because the law effectively displaced state authority in

"areas of traditional governmental functions." Id. at 852. The

Court explained:

  If Congress may withdraw from the States the authority to make

  those fundamental employment decisions upon which their systems

  for performance of these functions must rest, we think there

  would be little left of the States' "`separate and independent

  existence.'" Coyle, 221 U.S., at 580, 31 S. Ct., at

  695. . . . Congress has sought to wield its power in a fashion

  that would impair the States' "ability to function effectively

  in a federal system," Fry, 421 U.S., at 547 n.7, [95

  S. Ct., at 1796]. This exercise of congressional authority does

  not comport with the federal system of government embodied in

  the Constitution. We hold that insofar as the challenged

  amendments operate to directly displace the States' freedom to

  structure integral operations in areas of traditional

  governmental functions, they are not within the authority

  granted Congress by Art. I, § 8, cl. 3.



Id. at 851-52. /36

  Less than a decade later, in a 5-4 majority opinion, the Court

overturned National League of Cities as "unsound in principle

and unworkable in practice." Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 546. 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985).

  [T]he fundamental limitation that the constitutional scheme

  imposes on the Commerce Clause to protect the "States as

  States" is one of process rather than one of result. Any

  substantive restraint on the exercise of Commerce Clause powers

  must find its justification in the procedural nature of this

  basic limitation, and it must be tailored to compensate for

  possible failings in the national political process rather than

  to dictate a "sacred province of state autonomy."



Id. at 554. The Garcia Court thus embraced James

Madison's faith that the federal government "will partake sufficiently of

the spirit [of the States] to be disinclined to invade the rights of the

individual States, or the prerogatives of their governments." The

Federalist, No. 46 (James Madison) at 319 (Jacob E. Cooke ed. 1961). /37

  [T]he principal and basic limit on the federal commerce power

  is that inherent in all congressional action-the built-in

  restraints that our system provides through state participation

  in federal governmental action. The political process ensures

  that [federal] laws that unduly burden the States will not be

  promulgated.



Garcia, 469 U.S. at 556. /38  Chief Justice Burger and Justices

Powell, Rehnquist and O'Connor warned in dissent that the majority's

decision "substantially alters the federal system embodied in the

Constitution." Id. at 557 (Powell, J., dissenting). Although

Garcia has not been formally overruled, its precedential

authority has been fundamentally eroded by recent decisions such as

Lopez and Morrison.

  In Hodel v. Indiana, 452 U.S. 314, 101 S. Ct. 2376, 69 L. Ed.

2d 40 (1981), a pre-Garcia case that does not appear to have

been similarly undermined, the Court applied a nexus test to challenges

to the reach of congressional authority via the Commerce Clause:

  A complex regulatory program such as established by the

  [Surface Mining] Act can survive a Commerce Clause challenge

  without a showing that every single facet of the program is

  independently and directly related to a valid congressional

  goal. It is enough that the challenged provisions are an

  integral part of the regulatory program and that the regulatory

  scheme when considered as a whole satisfied this test.



Id. at 329 n.17 (citing Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 262, 85 S. Ct. 348, 13 L. Ed. 2d 258

(1964); Katzenbach v. McClung, 379 U.S. 294, 303-04, 85 S. Ct.

377, 13 L. Ed. 2d 290 (1964)).

  The Court applied the Commerce Clause nexus requirement more recently

in Lopez.

  First, Congress may regulate the use of the channels of

  interstate commerce. . . . Second, Congress is empowered to

  regulate and protect the instrumentalities of interstate

  commerce, or persons or things in interstate commerce, even

  though the threat may come only from intrastate activities. . . .

  Finally, Congress' commerce authority includes the power to

  regulate those activities having a substantial relation to

  interstate commerce, i.e., those activities that

  substantially affect interstate commerce.



Lopez, 514 U.S. at 558-59 (citations omitted). The Court then

examined the Gun-Free School Zones Act's official Commerce Clause

rationale-that the presence of firearms around schools adversely

affected the quality of education, thereby adversely affecting future

interstate commerce-and concluded that the requisite nexus to interstate

commerce activity was missing. Id. at 564-67.

    To uphold the Government's contentions here, we would

  have to pile inference upon inference in a manner that would

  bid fair to convert congressional authority under the Commerce

  Clause to a general police power of the sort retained by the

  States. Admittedly, some of our prior cases have taken long

  steps down that road, giving great deference to congressional

  action. . . . The broad language in these opinions has

  suggested the possibility of additional expansion, but we

  decline here to proceed any further. To do so would require us

  to conclude that the Constitution's enumeration of powers does

  not presuppose something not enumerated . . ., and that there

  never will be a distinction between what is truly national and

  what is truly local . . . . This we are unwilling to do.



Lopez, 514 U.S. at 567-68.

  The Court reiterated that same fundamental respect for state sovereignty

in Morrison, where a provision of the Violence Against Women Act

was declared unconstitutional for lack of a sufficient nexus to interstate

commerce:

  Petitioners' reasoning, moreover, will not limit Congress to

  regulating violence but may, as we suggested in Lopez,

  be applied equally as well to family law and other areas of

  traditional state regulation since the aggregate effect of

  marriage, divorce, and childrearing on the national economy is

  undoubtedly significant. . . . Under our written Constitution,

  however, the limitation of congressional authority is not

  solely a matter of legislative grace.



Morrison, 529 U.S. at 615-16. "The Constitution requires a

distinction between what is truly national and what is truly local."

Id. at 617-18.

  Here, Lakewood argues that Congress has the power under the Commerce

Clause to regulate "Federal-aid road systems, which undoubtedly are

channels and instrumentalities of interstate commerce, as well as road

systems within this state that substantially affect interstate commerce."

Lakewood's Opening Br. at 16. For support, the City cites 23 U.S.C. §

101(b):

  It is hereby declared to be in the national interest to

  accelerate the construction of the Federal-aid highway systems,

  including The Dwight D. Eisenhower System of Interstate and

  Defense Highways, since many of such highways, or portions

  thereof, are in fact inadequate to meet the needs of local and

  interstate commerce, for the national and civil defense.

  . . . .

  It is further declared that since the Interstate System is

  now in the final phase of completion it shall be the national

  policy that increased emphasis be placed on the construction

  and reconstruction of the other Federal-aid systems in

  accordance with the first paragraph of this subsection [quoted

  above], in order to bring all of the Federal-aid systems up to

  standards and to increase the safety of these systems to the

  maximum extent.



23 U.S.C. § 101(b). Certainly, a sufficient nexus exists between

interstate commerce and the Federal-aid highway system to justify the

"regulatory scheme when considered as a whole." Hodel, 452 U.S. at 329

n.17.

  However, under Hodel, we must also determine whether the

"challenged provisions are an integral part of the regulatory program."

Id. As discussed above, § 409 in its pre-1995 form was evidently

designed to promote administrative candor in the application

for, and implementation of, federal safety enhancement funds,

Coniker, 695 N.Y.S.2d at 495; Robertson, 954 F.2d at

1435, and to prevent federal mandates "from providing an

additional, virtually no-work tool, for direct use in private

litigation." Light, 560 N.Y.S.2d at 965 (emphasis added). It is

therefore entirely reasonable that the privilege should cover "reports,"

"surveys," "schedules," "lists" and "data" that would not exist but-

for 23 U.S.C. §§ 130, 144, and 152. See Yarnell, 890 P.2d.

at 614. However, we fail to see how those vital federal purposes are

reasonably served by also barring the discovery and admissibility in

state court of routinely prepared state and local traffic and accident

materials and data that would exist even had a federal safety enhancement

program never been created, such as collision photographs, traffic

counts, citizen complaint letters, and "raw data" relating to the history

of a local traffic intersection. Such a broad privilege lacks the

requisite nexus to § 409's raison d'etre and cannot reasonably be

characterized as an "integral part" of the Federal-aid highway system's

regulation. Hodel, 452 U.S. at 328 n.17.



  (3) Necessary and Proper Clause: Lastly, petitioners suggest

that the 1995 amendment to § 409 was duly authorized by the Necessary and

Proper Clause, which gives Congress the authority to "make all laws which

shall be necessary and proper for carrying into execution the foregoing

powers." Const. art. I, § 8, cl. 18. In his concurrence in Heart of

Atlanta Motel, Inc., 379 U.S. 241, Justice Black explained that

  it has long been held that the Necessary and Proper Clause,

  Art. I, § 8, cl. 18, adds to the commerce power of Congress the

  power to regulate local instrumentalities operating within a

  single State if their activities burden the flow of commerce

  among the States.



379 U.S. at 271.

  Pierce County claims that Congress had the power to amend § 409 as it

did in 1995, "because, in order to encourage states to identify roads in

need of Hazard Elimination funds, it deemed it necessary to protect raw

data collected or compiled in making that evaluation from being used

against municipalities in highway accident litigation." Pierce County's

Suppl. Br. (Guillen) at 12. But while the federal government

enjoys authority to require state courts to enforce a federal privilege

protecting materials that would not have been created but-for federal

mandates such as those in §§ 130, 144, and 152, we conclude that it was

neither "necessary" nor "proper" for Congress in 1995 to extend that

privilege to traffic and accident materials and raw data created and

collected for state and local purposes, simply because they are

also collected and used for federal purposes. /39



  Unconstitutional Violation of State Sovereignty: While

Congress was authorized under its enumerated powers to enact 23 U.S.C. §

409 in its pre-1995 form, we find that its 1995 amendment of

that statute cannot be characterized as a valid exercise of any power

constitutionally delegated to the federal government. Absent a valid and

compelling federal interest, which petitioners have not identified here,

Congress fundamentally lacks authority to intrude upon state sovereignty

by barring state and local courts from admitting into evidence or

allowing pretrial discovery of routinely created traffic and accident

related materials and "raw data" created and held by state and local

governments and essential to the proper adjudication of claims brought

under state and local law, simply because such collections also

serve federal purposes. See Tardy, 659 N.E.2d at 820;

Kitts, 152 F.R.D. at 81. As most state courts recognized shortly

after Congress enacted § 409 in 1987, applying the § 409 privilege to any

and all materials and "raw data" being collected by state and

local agencies "for the purpose of identifying . . . potential accident

sites, hazardous roadway conditions, or railway-highway crossings,

pursuant to §§ 130, 144, and 152" would have the unacceptable effect of

"sacrific[ing] the state tort scheme on the altar of the federal

statutory scheme." Yarnell, 890 P.2d at 613. We conclude that

Congress' 1995 amendment to § 409 was unconstitutional and is thus

unenforceable. See Morrison, 529 U.S. at 607-08.

  We therefore hold that the federal privilege created by § 409 lawfully

applies only to "reports," "surveys," "schedules," "lists" and "data" that

are originally "compiled"-i.e., created, composed, recorded-for

the specific purpose of

  identifying, evaluating, or planning the safety enhancement of

  potential accident sites, hazardous roadway conditions, or

  railway-highway crossings, pursuant to sections 130, 144, and

  152 of this title, or for the purpose of developing any highway

  safety construction improvement project which may be

  implemented utilizing Federal-aid highway funds.

23 U.S.C. § 409; see Yarnell, 890 P.2d at 614. In other

words, the privilege only covers:

  (1) surveys to identify hazardous railroad crossings and

  improve them (§ 130); (2) applications for federal assistance

  in replacing or rehabilitating highway bridges (§ 144); (3)

  studies assigning priorities and schedules of projects for

  highway improvement (§ 152); and, (4) other compilations made

  for developing highway safety construction projects which would

  utilize Federal-aid funds (§ 409).



Wiedeman, 627 So. 2d at 173.

  If this state court has misconstrued the United States Constitution's

limitations upon the federal government's power to intrude upon the

exercise of state sovereignty in so fundamental an area of law as the

determination by state and local courts of the discoverability and

admissibility of state and local materials and data relating to traffic

and accidents on state and local roads, we are confident that the United

States Supreme Court will so instruct, as is its constitutional role under

our federalist system of government. As James Madison explained shortly

prior to the United States Constitution's ratification:

  It is true that in controversies relating to the boundary

  between the two jurisdictions [i.e., state and federal], the

  tribunal which is ultimately to decide, is to be established

  under the general [i.e., federal] Government. But this does not

  change the principle of the case. The decision is to be

  impartially made, according to the rules of the Constitution;

  and all the usual and most effectual precautions are taken to

  secure this impartiality.



The Federalist, No. 39 (James Madison), at 256 (Jacob E. Cooke

ed. 1961).



                                      IV

  Lastly, we agree with the Court of Appeals that Guillen is entitled to

attorney fees under RCW 42.17.340(4), since the record suggests that he

was entitled to at least four of the five items to which he was denied

access in his PDA case. Guillen, 96 Wn. App. at 874.



                                  CONCLUSION

  While RCW 46.52.080 bars Guillen from securing public disclosure of

accident reports prepared by persons involved in prior accidents at the

same intersection, the statute does not prohibit their pretrial discovery.

Moreover, only publicly held materials and data that were originally

created for the identification, evaluation, planning, or

development of federally funded safety enhancement projects under 23

U.S.C. §§ 130, 144, or 152 are lawfully privileged under 23 U.S.C. § 409,

and thus also exempt from public disclosure under RCW 42.17.310(j).

Because the record contains insufficient facts to apply this standard to

all of the disputed items, we vacate the lower courts' rulings and remand

for supplementation of the record and further proceedings not inconsistent

with this opinion.





  ALEXANDER, C.J., SMITH, JOHNSON, SANDERS, MADSEN, and IRELAND, JJ.,

concur.



_______________

  1 Thomas Ballard, the County Engineer, described these items in

greater detail as follows:

  5. Two of the documents at issue are items 1 and 13. Item

  no. 13 is a collection of the accident reports for the subject

  intersection from 1990 through 1996. Item no. 1 is a list of

  those same accidents showing the location, time, date and

  nature of the accident. A study of the accidents at the

  intersection was a crucial element in the County's review of

  the operation and safety of the intersection. The County

  collected those accident reports solely for that purpose. The

  decision to apply for Section 152 funds was based in large part

  on those accident reports. The nature of the accidents, as

  identified in those reports, was a critical determining factor

  in the County's design of the safety improvement for which

  application was made. The WSDOT [Washington State Dep't of

  Transp.] requires the County to fill out a prospectus to apply

  for Section 152 funds. . . . The prospectus specifically

  requires an accident history. If the County did not collect and

  analyze the accident reports, it would not be possible to plan

  and implement the safety improvements and it would be

  impossible to apply for and receive Section 152 funds.

  6. Items 10 and 11 are collision diagrams . . . used to

  consider whether the design of the intersection was a causative

  factor in the accidents and what, if any, design improvements

  could be made to increase safety and lessen the possibility of

  future accidents. . . . The Section 152 application

  specifically requires an explanation and design of the proposed

  improvement. Items 10 and 11 . . . were compiled and used

  specifically for the purpose of determining the need for and

  designing the signalization improvement that was the basis of

  the Section 152 application and that was ultimately installed

  at the intersection.



CP at 54-55 (Third Decl. of Thomas G. Ballard, P.E., County Engineer).





  2. Item 15 . . . is the draft of a memorandum from Fred

  Anderson, then Public Works Director, to Barbara Gelman, then

  County Council member. It consists of information used for the

  County's application for federal funds for safety enhancement

  at the intersection of 168th Street East and B Street East.



CP at 39 (Suppl. Decl. of Thomas G. Ballard, P.E., County Engineer).



  2 Initially, Pierce County had also refused to disclose "communication[s]

to the County regarding a perceived problem at the intersection," but

later "determined that it was not necessary to assert the [section 409]

privilege for these particular documents, and they were provided to

plaintiff." CP at 40.



  3 None of the materials at issue in Whitmer or in

Guillen was actually reviewed by the respective trial courts in

camera or made part of the appellate record under seal.



  4 The Washington Association of Prosecuting Attorneys (WAPA) faults

the Court of Appeals' Guillen opinion for "fail[ing] to address

the issue of the effect of RCW 46.52.080 on the county's obligation to

produce accident reports in response to discovery or public records

requests." Br. of Amicus WAPA at 8. The complaint appears to have merit.

The RCW 46.52.080 issue was duly raised by Pierce County before the Court

of Appeals in Guillen, see  Mot. for Discretionary

Review (Dec. 7, 1998) at 2, and the Court of Appeals expressly

acknowledged the issue when it granted review. See  Ruling

Granting Review and Consolidating Cases (Jan. 15, 1999) at 2. Yet,

without addressing RCW 46.52.080, the Court of Appeals ruled, simply,

that "[t]he trial court properly granted Guillen's request for disclosure

of accident reports pertaining to the subject intersection."

Guillen, 96 Wn. App. at 873. The RCW 

46.52.080 issue is properly

before us.



  5 See also Cowles Publ'g Co. v. City of Spokane, 69 Wn. App. 678,

849 P.2d 1271, review denied, 122 Wn.2d 1013 (1993); Tacoma

News, Inc. v. Tacoma-Pierce County Health Dep't, 55 Wn. App. 515, 778

P.2d 1066 (1989), review denied, 113 Wn.2d 1037 (1990).





  6 The term "agency" includes "local agencies," which in turn includes

"every county, city, town, municipal corporation, quasi- municipal

corporation, or special purpose district, or any office, department,

division, bureau, board, commission, or agency thereof . . . ." RCW

42.17.020(1). Petitioners Pierce County and the City of Lakewood are

therefore both subject to RCW 42.17.260(1). See Dawson v. Daly,

120 Wn.2d 782, 788, 845 P.2d 995 (1993).



  7 See RCW 46.52.030 (1) ("Accident reports. (1)

Unless a report is to be made by a law enforcement officer under

subsection (3) of this section, the driver of any vehicle involved in an

accident resulting in injury to or death of any person or [serious]

damage to the property of any one . . . shall . . . make a written report

of such accident . . . ."); RCW 46.52.040 (requiring vehicle's occupant

to prepare the "accident report" if operator is physically

incapacitated); cf. RCW 46.52.070 ("Police officer's

report. (1) Any police officer of the state of Washington or of any

county, city, town or other political subdivision, present at the scene

of any accident or in possession of any facts concerning any accident

whether by way of official investigation or otherwise shall make report

thereof in the same manner as required of the parties to such accident

and as fully as the facts in his possession concerning such accident will

permit."); RCW 46.52.030(3) ("Any law enforcement officer who

investigates an accident for which a report is required under subsection

(1) of this section shall submit an investigator's report as required by

RCW 46.52.070.").



  8 We note, however, that RCW 46.52.060 mandates that the "number of

accidents" at each location, along with their "frequency and

circumstances thereof," be "publish[ed]" on a monthly and annual basis.

See  RCW 46.52.060 ("It shall be the duty of the chief of the

Washington state patrol to file, tabulate, and analyze all accident

reports and to publish annually, immediately following the close of each

fiscal year, and monthly during the course of the year, statistical

information based thereon showing the number of accidents, the location,

the frequency and circumstances thereof and other statistical

information which may prove of assistance in determining the cause of

vehicular accidents."). RCW 42.17.251 mandates that PDA provisions be

"liberally construed," and the term "publish" has been defined as

follows: "To make public; to circulate; to make known to people in

general. To issue; to put into circulation. . . . An advising of the

public or making known of something to the public for a purpose." Black's

Law Dictionary 1233 (6th ed. 1990). Thus, while only the public entities

identified in the second paragraph of RCW 46.52.060 would be entitled to

disclosure of the "accident reports" themselves and any "analysis or

reports thereof," RCW 46.52.060 would still entitle Guillen to public

disclosure of the following raw data: "the number of accidents" at the

location in question, the "frequency," and the "circumstances thereof."



  9 While Mebust recognized our holding in Folden v.

Robinson, 58 Wn.2d 760, 364 P.2d 924 (1961), regarding

inadmissibility, the court stressed the need to narrowly circumscribe any

privilege and the importance of maintaining liberal discovery

rules. Mebust, 8 Wn. App. at 361.



  10 It was after citing this provision-and in this sense-that

we remarked in City of Seattle v. Gerry, 76 Wn.2d 689, 458 P.2d

548 (1969), "The report itself was not before the court, nor were any of

its details . . . . That being so, its privileged nature was in

no way violated." Id. at 693 (emphasis added). Our phrase

"privileged nature" referred only to admissibility. Whether or not the

report was subject to discovery was never in question. See

also Gooldy, 69 Wn.2d at 613-14.



  11 Pub. L. 93-87, Title II, § 209(a) (Aug. 13, 1973), 87 Stat. 286.

The other two statutes referenced in § 409 relate to federal safety

improvements programs for rail crossings (§ 130) and highway bridges (§

144), not applicable here. Much of the § 409 case law, though, relates to

rail crossing data, collected pursuant to § 130 rather than to § 152.



  12 Pub. L. 100-17, Title I, § 132(a) (Apr. 2, 1987), 101 Stat. 170.



  13 As originally enacted, § 409 made referenced materials only

inadmissible as evidence at trial. Light, 560 N.Y.S.2d at 963

(interpreting pre-1991 version of § 409). In 1991, though, Congress

amended § 409 so as to make them nondiscoverable as well.



  14 See Rodenbeck v. Norfolk & W. Ry., 982 F. Supp. 620, 624

(N.D. Ind. 1997) (noting that if a government "knows that its candid

efforts of persuasion" to secure safety improvement funds "may ultimately

be used against it, [that government] will be far less forthcoming in

offering any `data' by which that discretion can be exercised, and indeed

may choose not to offer safety suggestions at all.").



  15 See also Trammel v. United States, 445 U.S. 40, 50, 100

S. Ct. 906, 63 L. Ed. 2d 186 (1980):

  Testimonial exclusionary rules and privileges contravene

  the fundamental principle that "`the public . . . has a right

  to every man's evidence.'" United States v. Bryan, 339

  U.S. 323, 331[, 70 S. Ct. 724, 730, 94 L. Ed. 884] (1950). As

  such, [privileges] must be strictly construed and accepted

  "only to the very limited extent that permitting a refusal to

  testify or excluding relevant evidence has a public good

  transcending the normally predominant principle of utilizing

  all rational means for ascertaining truth." Elkins v.

  United States, 364 U.S. 206, 234[, 80 S. Ct. 1437, 1454, 4

  L. Ed. 2d 1669] (1960) (Frankfurter, J., dissenting).



  16 Palacios v. La. & Delta R.R., 682 So. 2d 806 (La. Ct.

App. 1996).



  17 Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659

N.E.2d 817 (1995).



  18 See also Miguez v. S. Pac. Transp. Co., 645 So. 2d 1184,

1189 (La. Ct. App. 1994) (finding it "unwise from a practical

perspective" to construe section 409 so broadly as "to unilaterally place

off limits evidence so vital to the court's quest for the truth,"

effectively "provid[ing] a drop rug under which a potentially liable

party may conveniently conceal its prior misconduct," thereby "deny[ing]

legitimate accident victims the only system of redress available to

them.").



  19 In 1961, Washington statutorily waived its absolute sovereign

immunity: "The state of Washington, whether acting in its governmental or

proprietary capacity, shall be liable for damages arising out of its

tortious conduct to the same extent as if it were a private person or

corporation." RCW 4.92.090. Citing Kelso v. City of Tacoma,

63 Wn.2d 913, 390 P.2d 2 (1964), Whitmer argues that, "[a]s a matter of

public policy, this attempt by these municipalities to hide evidence of

their misconduct would violate the statutory waiver of sovereign immunity

applicable to all governmental entities within the State of Washington,

and would place governmental tortfeasors above the law and not answerable

to our Supreme Court's Civil Rules." CP (Whitmer) at 40. While

the privilege does not per se violate RCW 4.92.090, the statute does

evidence a strong public policy of holding governments accountable for

their tortious conduct.



  20 As the Yarnell court explained:

  Thus when § 409 refers to "surveys" and "schedules," it is

  referring specifically to those surveys and schedules prepared

  pursuant to 23 U.S.C. § 130(d). Similarly, 23 U.S.C. § 144(e)

  . . . requires the federal government to inventory, classify, and

  prioritize highway bridges and categorizes this as

  "data." (Emphasis added.) And, 23 U.S.C. § 152

  (hazardous roads), requires the states to "survey"

  roads, implement a "schedule" of projects for

  improvement, and submit a "report" to the federal

  government on progress being made to implement highway safety

  improvement projects. 23 U.S.C. § 152(a), (g) (emphasis added).

Yarnell, 890 P.2d at 614.



  21 Federal courts during this period tended to embrace a more

expansive understanding of section 409. In Robertson v. Union Pac.

R.R., 954 F.2d 1433 (8th Cir. 1992), the Eighth Circuit held that §

409 "provides a fairly broad exclusion." Id. at 1435. The court

deemed "without merit" the plaintiff's claim that materials were not

privileged if "not collected or utilized solely for federal

funding projects." Id. at 1435 n.3 (emphasis added). Rather, the

court held that § 409 covered all materials compiled "`pursuant to

Sections 130, 144, and 152'" even if "available for other uses and

purposes." Id. The Eighth Circuit reiterated its broad

construction of § 409 in Lusby v. Union Pac. R.R., 4 F.3d 639

(8th Cir. 1993), where it reversed a trial court that had allowed

testimony by an expert who relied on state-held materials such as

accident reports, explaining that "state materials do not fall outside

the scope of § 409 merely because they are not compiled solely

for federal reporting purposes and are available for other uses."

Id. at 641 (emphasis added). The Lusby court held that

as long as one of the reasons for compiling accident reports or

other data was for "federal reporting purposes," they were privileged

under § 409. See also Taylor v. St. Louis S.W. Ry., 746 F. Supp.

50, 53-54 (D. Kan. 1990); Harrison v. Burlington N. R.R., 965

F.2d 155 (7th Cir. 1992).



  22 The respondents also cite Department of Transportation v.

Superior Court (Tate), 47 Cal. App. 4th 852, 857, 55 Cal. Rptr. 2d 2

(1996), where the court declined to give § 409 the "broad construction"

advanced by the defendants in that case, despite Congress' just-enacted

1995 amendment. The court based its ruling on a factual finding:

"[W]hatever its effect, [Congress' 1995 amendment] did not eliminate the

express requirement that the information at issue have been compiled or

collected pursuant to section 152, a requirement that [the state] has

failed to establish in this case." Id. at 855 n.2 (emphasis

omitted). Here, by contrast, the sworn declarations in the record

strongly suggest that one of the reasons the petitioner

"compiled or collected" the disputed items and data was pursuant to §

152.



  23 See, e.g., Mackie v. Grand Trunk W. R.R., 215 Mich. App. 20,

23-26, 544 N.W.2d 709 (1996); Rodenbeck v. Norfolk & W. Ry., 982

F. Supp. at 621-25; Reichert v. Dep't of Transp. & Dev., 694 So.

2d 193, 198 (La. 1997); Fry v. S. Pac. Transp. Co., 715 So. 2d

632, 637 (La. Ct. App. 1998); Sevario v. State ex rel. Dep't of

Transp. & Dev., 752 So. 2d 221, 227-31 (La. Ct. App. 1999),

review denied, 759 So. 2d 760 (La. 2000); Long v. Dep't. of

Transp. & Dev., 743 So. 2d 743 (La. Ct. App.), review

denied, 751 So. 2d 885 (La. 1999), cert. denied, 529 U.S.

1110 (2000).



  24 See 23 U.S.C. § 152(c) ("Funds authorized to carry out

this section shall be available for expenditure on-(1) any public

road."); 23 U.S.C. § 101(27) ("The term `public road' means any road or

street under the jurisdiction of and maintained by a public authority and

open to public travel.").



  25 See also Stevedoring Servs. v. Eggert, 129 Wn.2d 17, 23,

914 P.2d 737 (1996); Jones v. Rath Packing Co., 430 U.S. 519,

525, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977) ("Where, as here, the field

which Congress is said to have pre-empted has been traditionally occupied

by the States, see, e.g.,  U.S. Const., art. I, § 10;

Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358[, 18 S.

Ct. 862, 867, 43 L. Ed. 191] (1898), `we start with the assumption that

the historic police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress.'

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230[, 67 S. Ct.

1146, 1152, 91 L. Ed. 1447] (1947).").



  26 The petitioners cite several § 409 cases that find express

preemption controlling under the Supremacy Clause, but only

after implicitly or explicitly finding § 409 constitutional.

See, e.g., Claspill v. Mo. Pac. R.R., 793 S.W.2d 139, 140-41

(Mo.) (en banc), cert. denied, 498 U.S. 984 (1990); Sawyer

v. Ill. Cent. Gulf R.R., 606 So. 2d 1069, 1073-74 (Miss. 1992)

(resting on Supremacy Clause to reject plaintiff's argument that "the

federal government has no authority to tell us what rules of evidence to

enforce in the courts of this state"); City of Atlanta v.

Watson, 267 Ga. 185, 475 S.E.2d 896, 903-04 (1996) (holding that

"when a statute that has evidentiary implications is part of a larger

federal statutory scheme, the Supremacy Clause demands that states adhere

to the statute. To hold otherwise defeats a significant purpose of the

federal act and cannot be justified in light of the Supremacy Clause.")

(citing pre-1995 cases such as Yarnell, Sawyer,

Wiedeman, and Claspill); Long v. Dep't of Transp. &

Dev., 743 So. 2d 743 (citing U.S. Const. art. VI, cl. 2; Jones

v. Rath Packing Co., 430 U.S. at 525). Some of these are pre-1995

cases, and it is uncontested that Congress had authority to enact § 409

in its pre-1995 form, insofar as the privilege was understood to

apply only to materials and data created exclusively to comply

with the federal government's mandates.



  27 See, e.g., Lynn A. Baker, The Revival of States'

Rights: A Progress Report and a Proposal, 22 Harv. J.L. & Pub. Pol'y

95 (1998).



  28 See also Gregory, 501 U.S. at 458 (noting that enforcement of

a "balance of power between the States and the Federal Government will

reduce the risk of tyranny and abuse from either front," just as the

balance of power among the branches of the federal government does).



  29 See, e.g., New York v. United States, 505 U.S. 144

(holding Congress lacked the power to enact "take title" provision of Low-

Level Radioactive Waste Policy Act); United States v. Lopez, 514

U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (holding that Gun-

Free School Zones Act exceeded Congress' power); Seminole Tribe v.

Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)

(holding that Congress lacked authority under Indian commerce clause to

abrogate states' Eleventh Amendment immunity); Printz v. United

States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997)

(holding that Congress could not require state officers to conduct

background checks on prospective handgun purchasers under Brady Handgun

Violence Prevention Act); City of Boerne v. Flores, 521 U.S.

507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997) (holding that Freedom

Restoration Act exceeded Congress' Fourteenth Amendment enforcement

powers); Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L.

Ed. 2d 636 (1999) (holding Congress could not subject state to suit in

state court under Fair Labor Standards Act without its consent);

United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L.

Ed. 2d 658 (2000) (invalidating civil remedy provision of Violence

Against Women Act as exceeding commerce power).



  30 Lakewood's Opening Br. at 21; Pierce County's Opening Br.

(Whitmer) at 25-26 (passim); Lakewood's Reply Br. at 13-14;

Pierce County's Suppl. Br. re: Federal Preemption (Guillen) at 4-

10; Pierce County's Reply Br. (Guillen) at 3-5.



  31 Lakewood's Opening Br. at 15-21; Lakewood's Reply Br. at 5-13;

Pierce County's Suppl. Br. re: Federal Preemption (Guillen) at

10-11; Pierce County's Reply Br. (Guillen) at 5-6.



  32 Pierce County's Suppl. Br. re: Federal Preemption (Guillen) at

11-12; Pierce County's Reply Br. re: Federal Preemption (Guillen)

at 6-7.



  33 "We have repeatedly held that the Federal Government may impose

appropriate conditions on the use of federal property or privileges and

may require that state instrumentalities comply with conditions that are

reasonably related to the federal interest in particular

national projects or programs." Massachusetts v. United States,

435 U.S. 444, 461, 98 S. Ct. 1153, 55 L. Ed. 2d 403 (1978) (emphasis

added).



  34 In her dissent in Dole, Justice O'Connor agreed "that

there are four separate types of limitations on the spending power," but

argued that the majority's "application of the requirement that the

condition imposed be reasonably related to the purpose for which the

funds are expended is cursory and unconvincing." 483 U.S. at 213

(O'Connor, J., dissenting).

  When Congress appropriates money to build a highway, it is

  entitled to insist that the highway be a safe one. But it is

  not entitled to insist as a condition of the use of highway

  funds that the State impose or change regulations in other

  areas of the State's social and economic life because of an

  attenuated or tangential relationship to highway use or safety.

  Indeed, if the rule were otherwise, the Congress could

  effectively regulate almost any area of a State's social,

  political, or economic life on the theory that use of the

  interstate transportation system is somehow enhanced.



Id. at 215 (O'Connor, J., dissenting). She argued that Congress

is only authorized under the Spending Clause to "`specif[y] how the money

should be spent.'" Id. at 216 (O'Connor, J., dissenting)

(quoting Br. for Nat'l Conf. Amici Curiae). "`A requirement that is not

such a specification is not a condition, but a regulation, which is valid

only if it falls within one of Congress' delegated regulatory powers.'"

Id. Indeed, she warns,

  If the spending power is to be limited only by Congress' notion

  of the general welfare, the reality, given the vast financial

  resources of the Federal Government, is that the Spending

  Clause gives "power to the Congress to tear down the barriers,

  to invade the states' jurisdiction, and to become a parliament

  of the whole people, subject to no restrictions save such as

  are self imposed." United States v. Butler [297 U.S.

  at 78]. This, of course, as Butler held, was not the

  Framers' plan and it is not the meaning of the Spending Clause.



Id. at 217 (O'Connor, J., dissenting).



  35 While 23 U.S.C. § 145 "protect[s] state sovereignty," see

23 U.S.C. § 145(a) ("The authorization of the appropriation of

Federal funds or their availability for expenditure under this chapter

shall in no way infringe on the sovereign rights of the States to

determine which projects shall be federally financed."), the federal

mandates at issue here do not appear to be similarly

discretionary. See  23 U.S.C. § 152(a)(1) ("Each State shall

conduct and systematically maintain [a survey of all public roads, etc.]

. . . ."); 23 U.S.C. § 409 ("Notwithstanding any other provision of law

. . . , [identified materials] shall not be subject to discovery or

admitted into evidence in a Federal or State court proceeding or

considered for other purposes.").



  36 Notably, the following year in Patterson v. New York, 432

U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Court indicated

that it thought that internal state court procedures such as the

determination of evidentiary rules deserved deference under the

federalist framework as an area traditionally regulated by states:

  [W]e should not lightly construe the Constitution so as to

  intrude upon the administration of justice by the individual

  States. Among other things, it is normally "within the power of

  the State to regulate procedures under which its laws are

  carried out, including the burden of producing evidence and the

  burden of persuasion."



Id. at 201 (quoting Speiser v. Randall, 357 U.S. 513,

523, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958); Leland v. Oregon,

343 U.S. 790, 798, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952); Snyder v.

Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674

(1934)).



  37 Madison argued that fears of "ambitious encroachments of the

Federal Government, on the authority of the State governments" were

unjustified, since elected members of state and federal governments

represented the people, and states would band together to combat any such

encroachments just as Americans did to combat British tyranny in 1776.

The Federalist Papers, No. 46, at 320.

  Plans of resistance would be concerted. One spirit would

  animate and conduct the whole. The same combination in short

  would result from an apprehension of the federal, as was

  produced by the dread of a foreign yoke; and unless the

  projected innovations should be voluntarily renounced, the same

  appeal to a trial of force would be made in the one case, as

  was made in the other. But what degree of madness could ever

  drive the Federal Government to such an extremity?



Id.



  38 In 1990, the Missouri Supreme Court relied on Garcia to

reject claims that 23 U.S.C. § 409 constituted an unconstitutional

federal regulation of internal state court procedures. Claspill v.

Mo. Pac. R.R., 793 S.W.2d 139. The court held that, under

Garcia, "states must depend on the national political process

for their tenth amendment protections." Id. at 141. Since

Missouri had not been "deprived of any right to participate in the

national political process," id., Claspill's federalism

challenge failed.



  39 See also Printz, 521 U.S. at 923-24 (holding that the

Necessary and Proper Clause cannot be used to justify a federal law that

"violates the principle of state sovereignty").



Aug. 2001           GUILLEN v. PIERCE COUNTY          (concur) 1

                        Cause No. 68535-5



  MADSEN, J. (concurring) - Privileges are the exception, not the rule, and

therefore, they are "not lightly created nor expansively construed, for

they are in derogation of the search for the truth." United States v.

Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).

Today our court sidesteps this admonition and construes 23 U.S.C. § 409

in a sweeping manner, far beyond that intended and, most importantly,

dictated by Congress. While I concur in the result of the majority, I do

so only because the majority, not entirely comfortable with its own

result, determined that its own interpretation of § 409 exceeds Congress'

authority under the Tenth Amendment, and therefore, refused to enforce

its own expansive interpretation.

  In 1973, Congress enacted 23 U.S.C. § 152, which establishes a voluntary

national funding program for enhancement of dangerous roadways, requiring

states to identify hazardous locations and prioritize them for correction.

23 U.S.C. § 152. To thwart an unintended and unsavory result of § 152-that

private plaintiffs might gain a work free "tool" to use in civil

litigation-Congress enacted 23 U.S.C. § 409, which lies at the heart of

this dispute. See Coniker v. State, 695 N.Y.S.2d 492, 181 Misc. 2d (Ct.

Cl. 1999).

  Section 409 currently reads:

    Notwithstanding any other provision of law, reports, surveys,

  schedules, lists, or data compiled or collected for the purpose

  of identifying evaluating, or planning the safety

  enhancement of potential accident sites, hazardous roadway

  conditions, or railway-highway crossings, pursuant to sections 130,

  144, and 152 of this title or for the purpose of developing any

  highway safety construction improvement project which may be

  implemented utilizing Federal-aid highway funds shall not be subject

  to discovery or admitted into evidence in a Federal or State court

  proceeding or considered for other purposes in any action for

  damages arising from any occurrence at a location mentioned or

  addressed in such reports, surveys, schedules, lists, or data.



23 U.S.C. § 409 (emphasis added). In 1995, Congress added the term

"collected" to § 409, thus making inadmissible in court, those materials

"compiled or collected" for purposes of § 152. Congress was clear in its

intent regarding this amendment:

    This section amends section 409 of title 23 to clarify that

  data "collected" for safety reports or surveys shall not be subject

  to discovery or admitted into evidence in Federal or State court

  proceedings.

    This clarification is included in response to recent State

  court interpretations of the term "data compiled" in the current

  section 409 of title 23. It is intended that raw data collected

  prior to being made part of any formal or bound report shall not be

  subject to discovery or admitted into evidence in a Federal or State

  court proceeding or considered for other purposes in any action for

  damages arising from any occurrence at a location mention[ed] or

  addressed in such data.



H.R. Rep. 104-246 § 328, at 59 (1995).

  I agree with the majority that this amendment was intended to make a

"change" in § 409. Majority at 22; See Home Indem. Co. v. McClellan

Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969). However, I

disagree with the majority as to the import of that change. Under the

majority's holding, original police reports prepared for purposes

unrelated to § 152, become privileged, even in the hands of the party

that created them, once they have been "collected" by any entity for

purposes of § 152. Majority at 22. Contrary to the majority's

assertions, this was not the result intended by Congress, nor is it a

holding dictated by any decisional law.

  This point is easily shown by examining: (1) the well settled purpose

behind § 409; (2) how state courts partially undermined that purpose prior

the 1995 amendment; (3) how the 1995 amendment can be logically read to

bring the interpretation of § 409 back in line with its purpose; and (4)

what state courts have done since the amendment.

  The purpose of § 409 is clear:

  The manifest Congressional intent in enacting 23 U.S.C. §

  409 was to "foster the free flow of safety-related

  information by precluding the possibility that such

  information later would be admissible in civil suits. The

  interest to be served by such legislation is to obtain

  information with regard to the safety of roadways free from

  the fear of future tort actions" (Perkins v. Ohio Dept.

  of Transportation, 65 Ohio App.3d 487, 500, 584 N.E.2d

  794, 802; see also Palacios v. Louisiana and Delta

  RR, 740 So.2d 95; Reichert v. State of

  Louisiana, 694 So.2d 193). The statute has the dual

  effect of (1) facilitating candor in the evaluation of

  highway safety hazards, and (2) prohibiting federally

  required record keeping from being used as a tool by civil

  litigants (see, Robertson v. Union Pacific RR Co.,

  954 F.2d 1433 (8th Cir.1992); Stephens v. Town of

  Jonesboro, 642 So.2d 274).



Coniker, 695 N.Y.S.2d at 494-95. This is distilled into one

basic and obvious rule: Congress did not want to create a "virtually no-

work, tool for direct use in private litigation," Light v.

State, 560 N.Y.S.2d 962, 965, 149 Misc. 2d 75 (Ct. Cl. 1990). In

essence, Congress did not want any party involved in litigation to be

better off, or for that matter worse off, by reason of a State's

participation in seeking § 152 funding.

  State courts began to undermine this purpose by giving § 409 an

unduly narrow construction. An examination of one of the leading state

court opinions on the proper scope of section 409 during the period

preceding the 1995 amendment shows the limited construction of § 409 that

Congress was aiming to overturn by its amendment. Wiedeman v. Dixie

Elec. Membership Corp., 627 So. 2d 170 (La. 1993), cert.

denied, 511 U.S. 1127 (1994), concerned a plaintiff's discovery

requests to the State Department of Transportation and Development

(DOTD). Plaintiffs sought information, such as accident reports, traffic

counts, and other raw data collected by the department that was gathered

by the DOTD in preparing its applications for federal funding.

Id.  Plaintiffs also sought surveys, compilations, and the

actual applications for federal funding.

  The Louisiana Supreme Court held that the raw data and reports

gathered by the DOTD, which were later incorporated into a report, were

not privileged by reason of § 409:

    DOTD argues for an even more expansive interpretation that

  would protect data and raw facts as well as the written documents

  incorporating the data. DOTD essentially asks this Court to

  transform a statute, which by its literal wording protects

  information compiled for certain purposes, into one which

  protects all information in DOTD's possession. We refuse. The word

  "compiled" indicates that information is collected into one document

  or composed from other sources. [See Webster's New Collegiate

  Dictionary p. 230, (1977).]  The term suggests an end product,

  something more than unedited factual material. Section 409 creates

  a privilege for compilations enumerated in the statute, but the

  privilege does not extend to reports and data gathered for or

  incorporated into such compilations.

    . . . . A rule which requires DOTD to divulge source data but

  not the end product fosters candor by shielding the state's self-

  critical evaluations and conclusions from outside scrutiny. It also

  accords with Louisiana's strong interest in fully and fairly

  adjudicating matters before its courts and the concomitant need to

  facilitate open and evenhanded development of the facts underlying a

  dispute.



Wiedeman, 627 So. 2d at 173 (emphasis added). Other state

courts construed section 409 in a similar fashion during this period.

See Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659 N.E.2d

817 (1995); S. Pac. Transp. Co. v. Yarnell, 181 Ariz. 316, 890

P.2d 611, cert. denied, 516 U.S. 937 (1995).

  In Wiedeman, and other similar cases, plaintiffs were

attempting to gain information that was "collected" by an agency for

purposes of preparing an application for federal funding from the agency

that "collected" the information. In none of these cases were plaintiffs

seeking information or reports from their original source, such as

accident reports from a law enforcement agency. This is a critical

distinction, and one that is unnecessarily dismissed as inconsequential

by the majority. As illustrated below, it is a distinction that makes

sense.

  When Congress amended § 409 to include within its scope information

that was "collected" it was reacting to decisions like Wiedeman.

Congress simply "intended that raw data collected prior to being made

part of any formal or bound report shall not be subject to discovery or

admitted into evidence." H.R. Rep. 104-246 § 328 (emphasis added).

However, this did not obviate the express statutory requirement that the

raw data and information be "collected" pursuant to § 152.

  An example illustrates this point, and the flaw in the majority's

analysis. Take the simple case of a Pierce County Sheriff's Department

officer completing a written accident report for a valid law enforcement

purpose (e.g., documenting why a citation was given or an arrest made), a

duty regularly performed long before 1973, the year § 152 was originally

enacted. Pub. L. 100-17, Title I, section 132(a) (Apr. 2, 1987) 101

Stat. 170; see RCW 46.52.060 and accompanying historical

information. This report, and others like it, might contain myriad

relevant information for a plaintiff pursuing a negligent traffic design

claim against the government.

  Now, let us assume that these reports are kept on microfiche, and

several years later the Pierce County Engineer's Office begins

"collecting" copies of these reports, but does not make them "part of any

formal or bound report." See H.R. Rep. 104-246 § 328. Under

section 409, as amended, a plaintiff would not be entitled to have access

to the actual documents "collected" by the Pierce County Engineer's

Office. Indeed, this would provide a "virtually no-work, tool for direct

use in private litigation," Light, 560 N.Y.S.2d at 965, as a

litigant would be able to obtain a collection of reports that is part of

a work in progress. However, to say that a litigant would not have

access to the original reports, still contained on microfiche, from

Pierce County is an entirely different matter.

  By preventing a litigant from gaining access to information that has

been "collected" for purposes of securing federal funding, Congress has

made the litigant no better off than they would have been had the State

not participated in the funding program, which is the obvious goal of §

409. However, if, as the majority suggests, Congress has prevented a

litigant from having access to original reports from their original

sources, prepared for purposes unrelated to securing federal funding,

then a litigant would be in a far worse position than if the State did

not participate in the funding program. I do not believe that was the

result intended by Congress, nor do I believe it is dictated by the

language of § 409.

  No post-1995 amendment case involves the discovery of original reports

from the agency creating them for purposes unrelated to the securing of

federal funding. Instead, each involves an attempt to gather information

already collected or prepared by a state agency, from the agency that

"collected" the information for the purpose of securing § 152 funds.

See, e.g., Reichert v. Dep't. of Transp. & Dev., 694 So. 2d 193

(La. 1997) (discovery request to DOTD for documents collected by DOTD);

Mackie v. Grand Trunk W. R.R., 215 Mich. App. 20, 544 N.W.2d 709

(1996) (involving "Grade Crossing Report" compiled by Michigan Department

of Transportation; decided under pre-amended version of section 409). Not

surprisingly, in each instance courts have reached the conclusion that the

"collected" information is privileged:

    On November 28, 1995 section 409 was amended to include the

  words "or collected" after "compiled" to effectively eliminate the

  admissibility of "[a]ccident reports, traffic counts, and other raw

  data collected by the Department" allowed by the holding in

  Wiedeman. Id. This clarification was added in response to

  recent State court decisions, like Wiedeman, that in the view of

  Congress, misinterpreted the term "data compiled." . . . In other

  words, such information is collected or compiled to protect

  the public by ensuring that safety measures are routinely explored

  by DOTD without exposing their efforts.



Reichert, 694 So. 2d at 198 (emphasis added).

  A narrow construction of § 409 is also supported by several rules of

statutory interpretation. The first is that there is a strong

presumption against federal preemption, requiring a showing that this is

"the clear and manifest purpose of Congress." Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447

(1947). Second, privileges are to be narrowly construed, as they stand

in "derogation of the search for truth." Nixon, 418 U.S. at

710; see Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct.

906, 63 L. Ed. 2d 186 (1980).

  Finally, this Court should be mindful that "where a statute is

susceptible of more than one interpretation, some of which may render it

unconstitutional, the court will adopt a construction which sustains the

statute's constitutionality, if at all possible." State ex rel.

Faulk v. CSG Job Ctr., 117 Wn.2d 493, 500, 816 P.2d 725 (1991). The

majority holds that Congress does not have the authority, as a result of

the Tenth Amendment, to enact a provision as sweeping as the majority

believes § 409 and its subsequent amendment were intended to be.

Specifically, the majority states:

  While Congress was authorized under its enumerated powers to enact

  23 U.S.C. § 409 in its pre-1995 form, we find that its 1995

  amendment of that statute cannot be characterized as a valid

  exercise of any power constitutionally delegated to the federal

  government.



Majority at 43. Of course, the interpretation of § 409 that I propose

does not run afoul of the Tenth Amendment, as is all but conceded by the

majority, since it is a clearly valid exercise of the Federal Spending

Power. Id. at 36; see Martinolich v. So. Pac. Transp.

Co., 532 So. 2d 435, 438 (La. Ct. App. 1988); Claspill v. Mo.

Pac. R.R., 793 S.W.2d 139 (Mo.), cert. denied, 498 U.S. 984

(1990); South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97

L. Ed. 2d 171 (1987).

  Because the record before this Court does not permit us to accurately

determine whether the disputed documents would be privileged under the

correct interpretation of § 409, like the majority, I would remand for

further proceedings.