American Legion v. Wash. Dept. of Health

Decision Date11 September 2008
Docket NumberNo. 79839-7.,79839-7.
Citation192 P.3d 306,164 Wn.2d 570
PartiesAMERICAN LEGION POST #149, Appellant, v. WASHINGTON STATE DEPARTMENT OF HEALTH and the Kitsap County Health District, Respondents.
CourtWashington Supreme Court

Shawn Timothy Newman, Attorney at Law, Olympia, WA, for Appellant.

Pamela H. Anderson, Mark Hodgeman Calkins, Attorney Generals Office, Olympia, WA, Philip Andrew Bacus, Kitsap County Prosecutors Office, Port Orchard, WA, for Respondents.


¶ 1 Appellant, American Legion Post No. 149 (Post) seeks review of a Thurston County Superior Court decision granting the respondents', Department of Health (DOH) and Kitsap County Health District (KCHD), motions for summary judgment and dismissing the case with prejudice. The questions presented in this case are whether the smoking in public places act (Act), chapter 70.160 RCW, prohibits smoking in the Post and, if it does, whether the prohibition is constitutional. We hold smoking is prohibited in the Post under the Act because it is a "place of employment" and the prohibition, as applied to the Post, is constitutional.


¶ 2 In 1985, the legislature adopted the clean indoor air act, which limited smoking in some public places. LAWS OF 1985, ch. 236. The 1985 act exempted "private facilities" and "private enclosed workplace[s], within a public place" from the smoking ban. Former RCW 70.160.020(2) (1985), amended by LAWS OF 2006, ch. 2, § 2; RCW 70.160.060.

¶ 3 In 2006, Washington voters enacted Initiative Measure 901. LAWS OF 2006, ch. 2. Chapter 70.160 RCW is now entitled "Smoking in Public Places." Initiative 901 expanded the prohibition on smoking in public places by amending the definition of a "`[p]ublic place'" to include facilities such as schools, bars, bowling alleys, and casinos. Compare former RCW 70.160.020(2), with RCW 70.160.020(2). Initiative 901 also added a prohibition against smoking "in any place of employment." RCW 70.160.030, .020(3) (defining a "`[p]lace of employment'"). A civil fine of up to $100 may be imposed for an intentional infraction of the Act. RCW 70.160.070(1). Enforcement authority is vested in local health departments and local law enforcement. RCW 70.160.070(3), .080.

¶ 4 Local health departments may adopt regulations to implement the Act. RCW 70.160.080.

¶ 5 In April 2006, the Kitsap County Board of Health adopted Ordinance 2006-2, the clean indoor air ordinance (Ordinance), which adopted and implemented chapter 70.160 RCW as amended by Initiative 901. The Ordinance mirrors the Act1 and delegates enforcement authority to the KCHD.

¶ 6 The Post is a nonprofit, private fraternal organization whose membership of 591 people is limited to those who served in the military or the Merchant Marine during specific time periods. Members must either be on active military duty or be honorably discharged. The Post's primary purpose is to provide services and benefits to veterans and their families. It seeks to unite its membership "in the bonds of fraternity, benevolence, and charity." Clerk's Papers (CP) at 103.

¶ 7 The Post owns and operates a facility in Bremerton, Washington, that is open only to members and guests. The facility is maintained, in part, to provide a social atmosphere for the members. The Post employs seven people to run the facility.2 The Post permits members and guests to smoke tobacco products in its facility when it is not open to the public.3 Smoking occurs in a lounge where employees are required to work.

¶ 8 In May 2006, the KCHD issued a notice that the Post was violating the Act by allowing individuals to smoke inside the Post and demanded immediate compliance. The Post refused and filed an action in the Thurston County Superior Court seeking a declaratory judgment and injunctive relief under the Administrative Procedure Act (APA),4 chapter 34.05 RCW, and the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, to preclude KCHD and the DOH from prohibiting smoking in the Post.

¶ 9 The parties filed cross motions for summary judgment. Following oral argument, the trial court judge issued an order granting KCHD's and DOH's motions for summary judgment, denying the Post's motion for summary judgment, and dismissing the Post's complaint with prejudice. We granted direct review.


1. Whether smoking is prohibited under the Act in private facilities that are places of employment.

2. Whether the Post has standing to challenge the Act as it applies to its members' constitutional rights.

3. Whether the Act violates article I, section 7 of the Washington Constitution.

4. Whether the Act violates article I, section 12 of the Washington Constitution.

5. Whether the Act violates the equal protection clause of the United States Constitution.

6. Whether the Act is void for vagueness under the due process clauses of the Washington Constitution and United States Constitution.

7. Whether any party is entitled to attorney fees.

A. Standard of review

¶ 10 The trial court granted summary judgment for KCHD and DOH. This court is asked to interpret RCW 70.160.011, .020, .030, and .060. We review rulings on summary judgment and issues of statutory interpretation de novo. Udall v. T.D. Escrow Servs., Inc., 159 Wash.2d 903, 908, 154 P.3d 882 (2007). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56(c).

B. Whether smoking is prohibited under the Act in private facilities that are places of employment

¶ 11 The first issue raised is whether the Act prohibits smoking in a private facility, such as the Post, that is also a place of employment. Standard rules of statutory construction apply to initiatives. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2000). "[I]n determining the meaning of a statute enacted through the initiative process, the court's purpose is to ascertain the collective intent of the voters who, acting in their legislative capacity, enacted the measure." Id. "Where the language of an initiative enactment is `plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation.'" Id. (quoting State v. Thorne, 129 Wash.2d 736, 762-63, 921 P.2d 514 (1996)); Brown v. State, 155 Wash.2d 254, 267, 119 P.3d 341 (2005) (noting that an initiative must be read as written, not as a court would like it to be written). "`In construing the meaning of an initiative, the language of the enactment is to be read as the average informed lay voter would read it.'" State v. Brown, 139 Wash.2d 20, 28, 983 P.2d 608 (1999) (quoting W. Petroleum Imp., Inc. v. Friedt, 127 Wash.2d 420, 424, 899 P.2d 792 (1995)).

¶ 12 An initiative must be read in light of its various provisions, rather than in a piecemeal approach, McGowan v. State, 148 Wash.2d 278, 288, 60 P.3d 67 (2002), and in relation to the surrounding statutory scheme, Brown, 155 Wash.2d at 268, 119 P.3d 341. A court must, when possible, "give effect to every word, clause and sentence of a statute." Cox v. Helenius, 103 Wash.2d 383, 387, 693 P.2d 683 (1985). The "goal is to avoid interpreting statutes to create conflicts between different provisions so that we achieve a harmonious statutory scheme." Echo Bay Cmty. Ass'n v. Dep't of Natural Res., 139 Wash.App. 321, 327, 160 P.3d 1083 (2007), review denied, 163 Wash.2d 1016, 180 P.3d 1290 (2008). If there is an apparent conflict between two provisions, the more specific and more recently enacted statute is preferred. Tunstall v. Bergeson, 141 Wash.2d 201, 210, 5 P.3d 691 (2000). Only if the language is ambiguous may the court examine extrinsic sources such as a voter's pamphlet. Brown, 155 Wash.2d at 267, 119 P.3d 341.

¶ 13 Finally, this court will not substitute its judgment for that of the electorate unless the initiative contravenes state or federal constitutional provisions.5 Amalgamated Transit, 142 Wash.2d at 206, 11 P.3d 762. Conversely, the court will not "declare laws passed in violation of the constitution valid based upon considerations of public policy." Id.

¶ 14 The Act prohibits smoking "in a public place or in any place of employment."6 RCW 70.160.030. "`Public place'" is defined as "that portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned in whole or in part by private persons or entities, the state of Washington, or other public entity." RCW 70.160.020(2). The final sentence of the definition of a "`[p]ublic place'" provides "[t]his chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon the occasions when the facility is open to the public."7 RCW 70.160.020(2). Smoking is not prohibited in a private enclosed workplace within a "public place." RCW 70.160.060. All parties agree that the Post is not a "public place."

¶ 15 Smoking is also prohibited in "any place of employment."8 RCW 70.160.030. A "`[p]lace of employment'" is defined as "any area under the control of a public or private employer which employees are required to pass through during the course of employment."9 RCW 70.160.020(3).

1. RCW 70.160.020(2)

¶ 16 The Post's first argument is that smoking is not prohibited in its facility because RCW 70.160.020(2) explicitly states, "[t]his chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon the occasions when the facility is open to the public." The Post argues "chapter" refers to the entire Act and if the voters wanted the exception to apply only to the definition of a "public place," the initiative should have modified this sentence.10 Thus,...

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