Discretionary immunity is a narrow court-created
exception to the Legislature’s abolition of sovereign immunity. Bender v.
Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983); Evangelical United
Brethren Church v. State, 67 Wn.2d 246, 255, 407 P.2d 440 (1965).
Discretionary immunity serves to assure that courts refuse to pass judgment
on policy decisions in the province of coordinate branches of government.
Bender, at 588; King v. Seattle, 84 Wn.2d 239, 246, 525 P.2d 228
(1974). To be protected by such immunity, an act, omission, or decision must
involve an exercise of basic policy evaluation, judgment and expertise by
the governmental agency involved. Evangelical United Brethren Church,
at 255. The activity must involve basic policy discretion rather than the
implementation of policy. Mason v. Bitton, 85 Wn.2d 321, 327-29, 534
P.2d 1360 (1975); Bender, at 588-90. Thus, only “high level
discretionary acts exercised at a truly executive level” are protected.
Bender, at 588.
Arguably, the Supply System’s decision to build the WNP
4 and WNP 5 is immune as a discretionary act. However, intervenors challenge
the means by which that decision was carried out. Intervenors allege that
respondents made fraudulent statements and omissions, which were used in the
Official Statements and Annual Reports by the Supply System to sell bonds to
finance the project. Thus, the acts complained of by intervenors do not
involve discretionary acts, or policy decisions by the Supply System; rather
they involve the mechanism by which the Supply System implemented its
decision to build the project. As a result, discretionary immunity does not
bar intervenors’ fraud claims. See Miotke v. Spokane, 101 Wn.2d 307,
337, 678 P.2d 803 (1984) (decision to build sewage bypass was not a basic
policy decision protected by discretionary immunity because the decision was
based on technical engineering and scientific judgment); Stewart v. State,
92 Wn.2d 285, 294, 597 P.2d 101 (1979) (decision to build a freeway was a
basic policy decision, but its design and lighting was not protected by
discretionary immunity). Algona v. Pacific, 35 Wn. App. 517, 520, 667
P.2d 1124, review denied, 100 Wn.2d 1028 (1983) (municipality furnishing
sewer facilities functioning in proprietary capacity and not immune to
suit).
