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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Personal Restraint of Allan Parmelee
NO. 47231-3-I
FILED

KENNEDY, J. Allan Parmelee was twice sanctioned for insolence while he
was incarcerated for stalking at the King County Correctional Facility in
Seattle. In this personal restraint petition, Parmelee argues that the
sanctions were based solely on the language he used in two written
grievances that he filed, and that such language in written grievances is
protected from infringement by the First Amendment. Applying the test
articulated in Turner v. Safley, 482 U.S. 78, 89-91, 107 S. Ct. 2254, 96 L.
Ed. 2d 64 (1987), we conclude that Parmelee's First Amendment rights were
not impermissibly infringed. Moreover, Parmelee was properly sanctioned
for making a threat in his second written grievance. Threats are not
protected by the First Amendment. Accordingly, we deny Parmelee's
petition.1

FACTS
Allan Parmelee was sentenced to serve four consecutive one-year sentences
in the King County jail for four misdemeanor stalking convictions. He was
released from custody on August 11, 2001.
Before his release, Parmelee was twice sanctioned with ten days of
disciplinary segregation and loss of ten days of good time for violation of
jail rules.
The August 9, 2000 Incident
On August 9, 2000, Corrections Officer Bonilla provided Parmelee with
access into an additional cell where he was permitted to maintain his
collection of legal papers. Bonilla was stationed in a control booth from
which he was able to close the door behind Parmelee. As the door was
closing, Parmelee slammed it back open, talking loudly in Bonilla's
direction. Bonilla was unable to understand what Parmelee said to him, but
asked whether Parmelee would like to see the Sergeant. Parmelee asked who
the Sergeant was and was informed that it was Acting Sergeant Naud.
Bonilla stated in a subsequent rule infraction report that Parmelee
responded, 'she's a bitch and it would be a waste of time.' Budhram
Affidavit, Ex. 1-A. Parmelee subsequently denied calling Acting Sergeant
Naud a bitch.
Shortly thereafter, Parmelee handed Bonilla a written grievance, which
stated in pertinent part:
My grievance is about the piss-ant officer slaming {sic} the door. . . on
me and will not let me move legal papers between cells since I have two
cells for legal papers. He says only one cell can be open at a time, per
movement/period.
I tried to solve this problem with staff member c/o Bonella {at} 4:30 p.m.
The officer was being an asshole and appeared to be intentionally trying to
give me a hard time for no reason, and would not open both my cell doors at
the same time.
I request the following resolution to my grievance. Fire this asshole
before someone reacts to his attempt to provoke violently, correct this
door problem immediately.

Exhibit 1-A to King County's Response.

Later that night, in response to the incident, Bonilla wrote up and
submitted a rule infraction report to his supervisor. He also provided a
copy of the report to Parmelee. The report charged Parmelee with one
infraction for G-301-Defiance/Insolence/Abuse (hereinafter referred to as
'insolence'). G-301 is defined in the Inmate Information Handbook as,
'Making flagrant, public statements which are degrading, ridiculing,
abusive, insolent, defiant, obscene, and/or which promote disorder.' The
report stated:
I/M Parmelee . . . handed me an I/M Grievance Form in which he stated I was
a pissant officer and an asshole, because I was closing the door behind him
when he entered LA02 (I/M Law office) to conduct legal work, as I was
instructed to do so by A/Sgt. Naud, so as to keep other I/M's away from his
stuff. While the door was closing he slammed it back open, talking loudly
in my direction, but I was unable to understand what he said. I also spoke
to I/M Parmelee to see if he wanted to talk to the tower Sgt. about his two
cell situation. He asked who it was and I told him A/Sgt. Naud, in which
the I/M stated she's a bitch and it would be a waste of time.

Attachment A to Parmelee's Petition.
At the subsequent disciplinary hearing, Parmelee pleaded not guilty.
The hearing officer found Parmelee guilty of the 301 infraction, and
sanctioned him with ten days of disciplinary segregation and with loss of
ten days of good time. In support of the sanction the hearing officer
wrote:
Again, the grievance procedure needs to be clarified{;} it is a procedure
available to you to bring issues to the attention of this department. The
grievance procedure is not a forum to make disparaging, degrading, abusive
comments about staff.
I find you guilty of G-301 Defiance/Insolence/Abuse. You stated,
'Fire this asshole before someone reacts to his attem{pt} to provoke
violently.' You also refer to the staff person as, a 'piss-ant officer.'
Also, the infracting officer reported he could not hear what you {were}
saying clearly while the door was closing, but spoke with you to see if you
wanted to talk to the tower Sgt., and it was then that you stated she was a
bitch. Again, you demonstrated you were making degrading, ridiculing, and
abusive comments, which is unacceptable behavior.

Ex. 2-B to King County's Response.
Parmelee appealed this decision. The administrative appeal officer ruled
in pertinent part:
You are not being punished or sanctioned for using the grievance
process. You will however be held accountable for the language you choose
to use, despite being directed not to use degrading language. Since you
choose to deliberately use degrading language in your grievances I find it
credible that you referred to Sgt. Naud in similar fashion and your claim
that it was not so, less credible. I see no indication sanctions were
changed as you claim. My review shows no bias on the part of staff. The
hearing was initiated within the prescribed time frame{;} it is no longer
72 hours. Your disciplinary hearing is recorded in writing.

Exhibit 1-C to King County's Response.
Parmelee remained in disciplinary segregation while he completed his
sentence of ten days. He served the ten days of lost good time prior to
his release from incarceration.
The August 15, 2000 Incident

On August 15, 2000, Parmelee was again charged with an infraction, this
time after Corrections Officer Lewis, who was distributing mail to inmates,
opened a piece of Parmelee's legal mail, in Parmelee's presence, and
removed a staple from a document. Parmelee was angered by this. Lewis
stated in his subsequent rule infraction report that Parmelee told him he
was 'stupid' and did not know what he was doing. Parmelee requested and
received a grievance form from Lewis.
A little over an hour later, Parmelee submitted a written grievance while
Lewis was making his rounds retrieving inmate service requests and
grievances. The grievance included a statement that the jail should 'fire
this prick {Officer Lewis} because shitheads like him shouldn't be around
prisoners' and that the officer should be fired 'before his attitude gets
him fucked up.' Attachment B to Parmelee's Petition.
Lewis submitted a rule infraction report to his supervisor later that
evening charging Parmelee with two infractions, one for violating G-301-
Defiance/Insolence/Abuse, and the other for making a threat in violation of
S-207.
At the subsequent disciplinary hearing Parmelee pleaded not guilty to
both charges, and provided a written statement in response. The hearing
officer found Parmelee guilty of both charges and imposed ten days of
disciplinary segregation and loss of ten days of good time. The hearing
officer stated the basis of the decision in a written report, stating the
following:
First, the grievance procedure needs to be clarified{;} it is a
procedure available to you to bring issues to the attention of this
department. This grievance procedure is not a forum to make disparaging,
degrading, abusive comments about staff.
I am finding you guilty of S-207, threats by your comment, 'Fire this
prick because shit-heads like him shouldn't be around prisoners befor{e}
his attitude gets him fucked up.' In your inmate statement you indicated
that your comment ''fucked up' could as it did here, mean he would/will get
sued.' While you may choose to qualify the meaning of saying the officer's
attitude could get him fucked up, it was not qualified at the time, and
clearly could be seen as an implied threat.
I also find you guilty of G-301, Defiance/Insolence/Abuse. You
stated, and I quote exactly, 'Fire this prick because shit-heads like him
shouldn't be around prisoners befor{e} his attitude gets him fucked up.
Issue a memo that staples are not to be removed for brainless idiots like
this one.' Clearly you demonstrated you were making degrading, ridiculing,
and abusive comments. This is not and will not be condoned as acceptable
while you are housed in KCCF.

Exhibit 1-E to King County's Response
Parmelee appealed the decision. The administrative appeal officer
denied the appeal, stating:
You are not being punished for using the grievance process. You have
been advised not to use degrading language which you continue despite the
directive not to. I find no conflict with the hearing officer{;} there was
nothing apparent to indicate any bias. The recording of your hearing is in
writing.
You are not to use degrading language - respect those in authority.

Exhibit 1-F to King County's Response.
Parmelee remained in disciplinary segregation while he completed his
sentence of ten days. Before his release from incarceration, he served the
ten days of lost good time.
On September 5, 2000, just under a year before he was released from
incarceration, Parmelee filed the instant personal restraint petition
challenging the loss of his good time credit as a result of the two
incidents. We subsequently appointed the Washington Appellate Project as
counsel on the following issue: 'Whether Parmelee's constitutional rights
were violated when he was punished for making insolent, abusive and
threatening comments about staff in an administrative grievance? See
Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995).'
ANALYSIS
In order to obtain relief, a personal restraint petitioner must show that
he is under restraint within the meaning of RAP 16.4(b), which provides in
part:
A petitioner is under a "restraint" if the petitioner has limited freedom
because of a court decision in a civil or criminal proceeding, the
petitioner is confined, the petitioner is subject to imminent confinement,
or the petitioner is under some other disability resulting from a judgment
or sentence in a criminal case.

Parmelee was under restraint when he filed the petition because he lost 20
days of good time credits as a result of the two infraction decisions.
An inmate is entitled to relief from the restraint if he can prove actual
and substantial prejudice as a result of constitutional error, or if he can
prove nonconstitutional error that inherently results in a "complete
miscarriage of justice." In re Cook, 114 Wn.2d 802, 813, 792 P.2d 506
(1990); In re Reismiller, 101 Wn.2d 291, 293, 678 P.2d 323 (1984). See
also RAP 16.4(c)(5) (a petitioner's restraint is unlawful if the conditions
or manner of the restraint are in violation of the Constitution of the
United States or this state, or in violation of the laws of this state).
Parmelee argues that the statements he made in his two written
grievances were protected First Amendment speech and thus he was
unconstitutionally punished, solely for having made those statements. We
disagree with Parmelee that he was punished 'solely' for the language
contained in the written grievances. He was also sanctioned for verbally
calling Acting Sergeant Naud a bitch, and for making a written threat to
Officer Lewis. But we agree that one of the bases for both sanctions was
the insolent language that Parmelee used in the written grievances that he
filed. Thus, the First Amendment issue is squarely before us.
A prisoner retains those First Amendment rights that are consistent with
his status as a prisoner or with the legitimate penological objectives of
the corrections system. Jones v. North Carolina Prisoners' Labor Union
Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977). In
Turner v. Safley, 482 U.S. 78, 87-89, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987), the Supreme Court stated that the proper inquiry turns on whether a
prison regulation is 'reasonably related' to legitimate penological
objectives, or whether it represents an 'exaggerated response' to those
concerns. In determining whether the prison regulation is reasonable, four
factors are relevant. 'First, there must be a valid, rational connection
between the prison regulation and the legitimate governmental interest put
forward to justify it.' Second, courts consider whether there are
'alternative means of exercising the {constitutional} right that remain
open to prison inmates.' Third, courts consider 'the impact accommodation
of the asserted constitutional right will have on guards and other inmates,
and on the allocation of prison resources generally.' And fourth, 'the
absence of ready alternatives is evidence of the reasonableness of a prison
regulation.' Turner, 482 U.S. at 89-90 (internal quotation marks omitted).
Parmelee relies upon the Ninth Circuit's opinion in Bradley v. Hall, 64
F.3d 1276 (9th Cir. 1995) for the proposition that his written grievances,
no matter how profane and disrespectful, were protected speech that cannot
permissibly be regulated by the King County jail's rule prohibiting
insolence. In Bradley, an Oregon prisoner challenged the constitutionality
of a prison regulation prohibiting the use of hostile, sexual, abusive, or
threatening language in a written grievance. The prisoner argued that the
regulation impermissibly burdened his constitutional right of free speech.
The Ninth Circuit agreed, stating that the Turner analysis 'does not
necessarily end at the recognition that the prison rule was adopted to
serve, and actually does serve, a legitimate penological interest.'
Bradley, 64 F.3d at 1280. The court went on to balance the importance of
the prisoner's infringed right against the importance of the penological
interest served by the challenged rule. Concluding that the government's
legitimate penological interests were overshadowed by the importance of the
prisoner's right of access to the courts in the context of filing a
grievance, the Ninth Circuit held that 'prison officials may not punish an
inmate merely for using hostile, sexual, abusive or threatening language in
a written grievance.' Bradley, 64 F.3d at 1282 (internal quotation marks
omitted).
Parmelee urges us to follow Bradley. We are not bound to do so. See In re
Grisby, 121 Wn.2d 419, 430, 853 P.2d 901 (1993) (while we always give
careful consideration to Ninth Circuit decisions, we are not obligated to
follow them). Nor are we inclined to do so in this instance, as the United
States Supreme Court subsequently criticized the Ninth Circuit's balancing
approach in Shaw v. Murphy, 532 U.S. 223, 230 n.2, 121 S. Ct. 1475, 149 L.
Ed. 2d 420 (2001) ('The {Ninth Circuit} Court of Appeals {improperly made
an assessment of the value of the content of a communication} when it
balance{d} the importance of the prisoner's infringed right against the
importance of the penological interest served by the rule.' (Citations and
internal quotation marks omitted)).
In Shaw, the United States Supreme Court reversed the Ninth Circuit's
decision of Murphy v. Shaw, 195 F.3d 1121 (9th Cir. 1999). A Montana
prisoner had been sanctioned for attempting to provide legal advice to a
fellow inmate. The sanctioned prisoner sued employees of the Montana
Department of Corrections, contending that the discipline imposed violated
his First Amendment rights. The Ninth Circuit agreed, concluding that the
challenged prison regulations were an 'exaggerated response.' Murphy, 195
F.3d at 1128. In reaching that conclusion, the Murphy court applied the
balancing test it adopted in Bradley, stating, 'The Bradley balance appears
to favor Murphy, suggesting that the prison regulations, as applied to him,
are an 'exaggerated response.'' Murphy, 195 F.3d at 1127. The United
States Supreme Court reversed, stating:
Because Turner provides the test for evaluating prisoners' First Amendment
challenges, the issue before us is whether Turner permits an increase in
constitutional protection whenever a prisoner's communication includes
legal advice. We conclude that it does not. To increase the
constitutional protection based upon the content of a communication first
requires an assessment of the value of that content. But the Turner test,
by its terms, simply does not accommodate valuations of content. On the
contrary, the Turner factors concern only the relationship between the
asserted penological interests and the prison regulation.

Shaw, 532 U.S. at 230.
Although we disagree with the King County Prosecutor's argument that the
Supreme Court thereby 'overruled' Bradley, it certainly disapproved of the
Bradley balancing test. We conclude that it is our task to apply the
Turner factors to Parmelee's claim that his First Amendment rights were
impermissibly infringed in this case, without attempting to balance the
importance of Parmelee's First Amendment rights against the importance of
the penological interests here at issue.
The question is whether Parmelee was impermissibly punished for having used
insolent language in the written grievances that he filed against the two
corrections officers. Parmelee's right to utilize the grievance process is
not at issue he certainly had the right to utilize the process, and prison
authorities may not retaliate against a prisoner for having utilized the
process. See, e.g., Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) (inmate
brought a cause of action under sec. 1983, alleging that prison officials
filed a false disciplinary report against him because he had filed prison
grievances). Parmelee does not contend that he was punished for having
used the grievance process. He claims instead that he cannot be punished
for the language he used in the written grievances because that language is
protected by the First Amendment.
The first Turner factor is whether there is a valid, rational connection
between the insolence rule here at issue and the legitimate governmental
interest put forward to justify it. King County explains that the
insolence rule serves two purposes. First, the rule encourages prisoners
to learn how to deal with authority and authority-figures more
productively, and less self-destructively, than they may have in the past
indeed, difficulty dealing with authority and authority-figures may be one
of the underlying causes of the criminal conduct that landed the inmate in
jail in the first place. Second, as also recognized by the Bradley court,
rules intended to promote respect for correctional officers 'help prison
staff display the high degree of self-control necessary in the correctional
profession by heading off situations in which inmates may bait or goad
guards into unprofessional conduct.' Bradley, 64 F.3d at 1280. Parmelee
does not contend that these purposes are not valid, rational, and
legitimate. Neither does he contend that there is no valid, rational
connection between the insolence rule and these legitimate purposes. We
conclude that the regulation passes the first of the Turner tests the rule
serves a valid penological purpose and there is a valid, rational
connection between the rule and the governmental interest put forward to
justify it.
Second, are there alternative means of exercising the right that remain
open to the inmate? Most certainly, there were, here. Parmelee and any
other inmate can file a written grievance without couching it in terms like
those used by Parmelee in this case. Parmelee could have complained that
Corrections Officer Bonilla failed to understand that he, Parmelee, was
trying to move legal papers between two cells that were available for that
purpose, and that he thought that Bonilla was intentionally trying to give
him a hard time for no reason by not opening both cell doors at one time.
Parmelee did not need to refer to Officer Bonilla as a 'piss-ant officer'
and an 'asshole' in order to explain the basis of his grievance. Neither
did he need to demand that the prison authorities 'fire this asshole before
someone reacts to his attempt to provoke violently,' in order to request
that the door problem be corrected.
As for the second grievance, Parmelee was apparently under the impression,
whether rightly or wrongly is of no consequence here, that corrections
officers were not to remove staples from legal documents that had been
mailed to inmates by lawyers or courts. He could have so stated in his
written grievance after Corrections Officer Lewis removed the staple from
whatever legal mailing that he delivered to Parmelee on that day, and asked
that the rule about staples be explained to Officer Lewis. He did not need
to demand that the jail authorities 'fire this prick because shitheads like
him shouldn't be around prisoners.' Neither was it necessary to the
exercise of the right to utilize the grievance process for Parmelee to
state that the officer should be fired 'before his attitude gets him fucked
up.' Parmelee does not contend otherwise he contends, instead, that he had
every right under the First Amendment to utilize the language he chose, and
that the prison authorities had no business sanctioning him for having done
so, because he did so in the text of a written grievance. The regulation
at issue passes the second Turner test the alternative means of filing
written grievances that do not contain insolent language remained open to
Parmelee.
Third, we consider the impact of allowing prisoners, without the
possibility of sanctions, to use scandalous, indecent, or insolent language
about corrections officers in written grievances. Given the ugly realities
of prison life, we have no doubt that the impact would be a veritable
barrage of similar written 'grievances,' filed not for the purpose of
addressing prisoner concerns but for the purpose of venting frustration,
resentment, and despair. As our Supreme Court recognized in Dawson v.
Hearing Committee, 92 Wn.2d 391, 396, 597 P.2d 1353 (1979):
{A} prison is a tightly controlled environment populated by persons who
have chosen to violate the criminal law, many of whom have employed
violence to achieve their ends. Tension between guards and residents is
unremitting; {f}rustration, resentment, and despair are commonplace.

(Citations and internal quotation marks omitted). The result of forbidding
prison authorities from sanctioning insolence such as that of Parmelee in
this case would likely be the total or near-total frustration of the very
legitimate penological purposes which are served by the regulation here at
issue.
Finally, we consider the fourth Turner factor, the absence of ready
alternatives to the prison regulation. Parmelee suggests none, except the
outright exemption of written grievances from the operation of the rule.
For the reasons already stated, we reject that premise. Moreover, such an
outright exemption would raise the First Amendment rights of prisoners
above those enjoyed by litigants outside the prison population. The
Bradley court was concerned about the right of prisoners to access to the
courts, which it believed could be hampered by punishing inmates for using
hostile, sexual, abusive or threatening language in written grievances. We
respectfully disagree, for language like that used by Parmelee in the
grievances here at issue would not be tolerated for an instant if it were
used in a personal restraint petition addressed to the courts, or in any
other kind of pleading, for that matter, filed by a person who is not a
prisoner. Cf., In re Marriage of Nielsen, 38 Wn. App. 586, 687 P.2d 877
(1984) (the power to censure contemptuous behavior is inherent in a court
of general jurisdiction); RCW 7.21.010 (defining 'contempt of court'); CR
12(f) (upon motion of a party or on the court's own initiative, the court
may order redundant, immaterial, impertinent, or scandalous matter to be
stricken from any pleading); CRLJ 12(f) (same).
In sum, because the rule prohibiting insolence passes the Turner tests,
jail authorities did not unreasonably sanction Parmelee when he violated
the rule by including scandalous, insolent, and abusive language in his
written grievances. It follows that neither the rule itself nor the
imposition of the sanctions represented an 'exaggerated response' to the
legitimate penological concerns that the rule is intended to foster. As
both hearing officers painstakingly explained to Parmelee in their written
decisions, he needed to understand that the grievance procedure is for the
purpose of bringing issues to the attention of the jail authorities, not a
forum to make disparaging, degrading, abusive comments about correctional
staff. And as both administrative appeal officers explained, Parmelee was
not being punished or sanctioned for using the grievance process. Rather,
he was being held accountable for the degrading, abusive language he chose
to use in the exercise of his right, despite his knowledge of the
applicable rule prohibiting insolence.
Parmelee was not 'wholly stripped' of his First Amendment rights while he
was in jail; but his First Amendment rights were subject to limitation
during that time because institutional goals and policies take top
priority. State v. Hartzog, 96 Wn.2d 383, 391, 635 P.2d 694 (1981),
quoting Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 41 L. Ed.
2d 935 (1974).
Beyond the Turner analysis, we deny First Amendment protection to the
statements within Parmelee's second grievance that the hearing officer
treated as a threat. 'True threats' are not protected by the First
Amendment. State v. J.M., 144 Wn.2d 472, 477, 28 P.3d 720 (2001); United
States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990). A
"true threat" is a statement made in a context or under such circumstances
in which a reasonable person would foresee that the statement would be
interpreted as a serious expression of intention to inflict bodily harm
upon, or to take the life of another. State v. Knowles, 91 Wn. App. 367,
373, 957 P.2d 797 (1998). It is only relevant that the speaker
intentionally and knowingly communicated the threat, not that he intended
or was able to carry out the threat. Orozco-Santillan, 903 F.2d at 1265,
n.3. Moreover, the fact that a threat is subtle does not make it less of a
threat. Id. at 1265.
In Parmelee's second grievance, he said, 'fire this prick because
shitheads like him shouldn't be around prisoners' and that the officer
should be fired 'before his attitude gets him fucked up.' Parmelee claimed
that he only meant that he might choose to file a lawsuit against Officer
Lewis, and that he did not intend to convey any threat to assault the
officer. The hearing officer found otherwise, noting that Parmelee had not
so qualified the statement when he wrote it, and that it clearly could be
seen as an implied threat. It is not our role to substitute our judgment
for that of the hearing officer. Indeed, 'a detention facility is a unique
place fraught with serious security dangers.' State v. Baker, 28 Wn. App.
423, 425, 623 P.2d 1172 (1981). In the prison context, if not in most
other settings, a reasonable person would foresee that the statements would
be taken as a serious expression of an intention to inflict bodily injury.
Officer Lewis so construed them, for he charged Parmelee with making a
threat. The hearing officer did not violate Parmelee's First Amendment
rights by rejecting Parmelee's explanation and by instead agreeing with
Officer Lewis's construction of the statements.
Thus, in addition to its insolence, this language constituted a true threat
and was unprotected by the First Amendment.
A personal restraint petitioner who alleges constitutional error
arising from a prison disciplinary hearing 'must demonstrate both that he
is presently restrained due to constitutional error and that the error
worked to his actual and substantial prejudice.' In re Burton, 80 Wn. App.
573, 585, 910 P.2d 1295 (1996). Although Parmelee is no longer restrained,
we elected to address the First Amendment issue he raises, in that it is
likely to arise again. The issue has, in fact, arisen before in this
court, but has not heretofore been addressed in a published opinion, in
that the other cases, like this one, became moot before we could reach
them. Although we have remedied that problem here by electing to address
the technically moot issue, Parmelee has failed to demonstrate
constitutional error arising from his two prison disciplinary hearings.
Accordingly, we deny his personal restraint petition.

WE CONCUR:

1 Parmelee's petition technically is moot because he is no longer
incarcerated for his stalking convictions. We have addressed the First
Amendment issue he raises, however, because it involves a matter of
continuing and substantial public interest. See In re Mines, 146 Wn.2d
279, 285, 45 P.3d 535 (2002) (a court may decide a moot case if it involves
matters of continuing and substantial public interest). We have not
addressed Parmelee's various due process claims, on the other hand, because
they do not meet the necessary criteria for addressing a moot appeal. See
Hart v. Department of Soc. & Health Serv., 111 Wn.2d 445, 448, 759 P.2d
1206 (1988) (discussing various factors courts consider in determining
whether an issue is of continuing and substantial public interest and thus
reviewable regardless of mootness).