Kightlinger v. Public Utility Dist. No. 1

• Decision Date: 16 December 2003
• Docket Number: No. 29296-3-II.,29296-3-II.
• Citation: 81 P.3d 876,119 Wash.App. 501
• Court: Washington Court of Appeals
• Parties: Garth KIGHTLINGER, Gary Scarbrough, Sid Sutherland, and Mark Williams, Respondents, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, a/k/a Clark Public Utilities, Appellants.

81 P.3d 876

119 Wash.App. 501

Garth KIGHTLINGER, Gary Scarbrough, Sid Sutherland, and Mark Williams, Respondents, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, a/k/a Clark Public Utilities, Appellants.

No. 29296-3-II.

Court of Appeals of Washington, Division 2.

December 16, 2003.

Donald Stewart Cohen, Gordon, Thomas, Honeywell et al., Joan C. Foley, Attorney at Law, Seattle, WA, for Appellant.

Ben Shafton, Attorney at Law, Vancouver, WA, for Respondent.

Richard Allan Finnigan, Attorney at Law, Olympia, WA, for Amicus Curiae WA Independent Telephone Assoc.

ARMSTRONG, J.

Garth Kightlinger¹ and several other Clark County taxpayers (the Taxpayers) sued Public Utility District No. 1 of Clark County, alleging that the PUD lacked statutory authority to engage in the business of repairing appliances other than those it sells or leases. Both parties moved for summary judgment; the trial court granted the Taxpayers' motion. On appeal, the PUD contends it has implied authority to operate the repair business. In addition, it argues there is no justiciable controversy, the Taxpayers lack standing to challenge PUD's longtime repair business, and laches bars the Taxpayers' action. We find no error and, therefore, affirm.

FACTS

Although the PUD's primary business is selling and distributing electricity, it has repaired appliances for over 60 years. The PUD repairs major appliances such as central forced air furnaces and air conditioning, heat pumps, baseboard heating, and ovens. Some of their services are not offered by anyone else in the county, and most repair service customers are also electric customers. The PUD offers the service to promote conservation and energy efficiency. The PUD also points out that customers are happy with their repair service. But the program apparently has been losing money. And the PUD recently raised their repair rates to help cover the losses.

In 1998, the Washington State Attorney General's Office (AG) issued an opinion that the PUD did not have legal authority to repair appliances other than those it sold or leased. The opinion stirred public interest, and Vancouver's daily newspaper published a number of articles and letters to the editor on the repair business. State legislation on the issue was introduced in 2001, but it did not pass. After the AG opinion, the Taxpayers waited for the PUD to "do the right thing" and discontinue its appliance repair service. Clerk's Papers (CP) at 167. When the PUD continued to repair appliances, the Taxpayers asked the AG to sue the PUD, but the AG declined.

The Taxpayers sued on May 11, 2001, seeking declaratory relief and to enjoin the repair business. The trial court granted Taxpayers' summary judgment. In its injunction, it declared that the PUD "does not have the statutory authority to engage in the business of repairing electrical appliances other than those it sells or leases." CP at 334.

ANALYSIS

I. Justiciable Controversy

The PUD asserts that no justiciable controversy exists because the Taxpayers do not claim any economic injury. The Taxpayers argue that their taxpayer status gives them sufficient interest in the subject matter to sue. Further, according to the Taxpayers, justiciability is not required where the issue is of major public importance.

A court will hear a declaratory judgment action only when a justiciable controversy exists or an issue of major public importance is involved. DiNino v. State ex rel. Gorton, 102 Wash.2d 327, 330, 684 P.2d 1297 (1984). A justiciable controversy is: (1) an actual, present, and existing dispute; (2) between parties having genuine and opposing interests; (3) that involves interests that are direct and substantial, rather than potential, theoretical, abstract, or academic; and (4) a judicial determination will be final and conclusive. Diversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973) (citations omitted).

Here, the parties have an actual, present, and existing dispute: whether the PUD has legal authority to repair appliances. This dispute is not hypothetical or speculative. Diversified Indus. Dev. Corp., 82 Wash.2d at 815, 514 P.2d 137. The parties also have "genuine and opposing interests," which are both direct and substantial. CP at 343. The PUD has an interest in continuing its repair services to serve customers and maintain its employees. The Taxpayers have an interest in assuring that the PUD does not spend their tax dollars to repair appliances (especially since it appears to be losing money). Finally, a judicial determination of the dispute would be final and conclusive.

But even if no justiciable controversy exists, the court may hear a declaratory judgment action if the issue is of major public importance. DiNino, 102 Wash.2d at 330,684 P.2d 1297. The PUD and the Taxpayers disagree about whether the PUD's authority to engage in appliance repair is of widespread public interest. The PUD contends that it is of local interest only, pointing out that it is the only PUD in the State to operate such a repair program. The Taxpayers counter that media scrutiny in Vancouver was intense, the state auditor sought an AG opinion on the issue, and the issue made it to the state legislature in 2001. We conclude that the issue is of widespread public interest because of the media coverage in Clark County and because of the possibility that other PUD's statewide may be interested in repairing appliances.

II. Standing

Under the Uniform Declaratory Judgment Act, standing and justiciability requirements tend to overlap. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 203, 11 P.3d 762 (2000), 27 P.3d 608 (2001). Inherent in justiciability requirements are the traditional limiting doctrines of standing, mootness, and ripeness. To-Ro Trade Shows v. Collins, 144 Wash.2d 403, 411, 27 P.3d 1149 (2001), cert. denied, 535 U.S. 931, 122 S.Ct. 1304, 152 L.Ed.2d 215 (2002). The PUD contends that the Taxpayers lack standing because they have not demonstrated that they are "within the zone of interests to be protected or regulated" and because they have suffered no harm, citing Save A Valuable Environment (SAVE) v. City of Bothell, 89 Wash.2d 862, 576 P.2d 401 (1978). App. br. at 14. The Taxpayers assert that, as taxpayers, they need show no specific injury to have standing.

The PUD, citing American Legion Post No. 32 v. City of Walla Walla, 116 Wash.2d 1, 802 P.2d 784 (1991), and Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 937 P.2d 1082 (1997), also argues that taxpayer status is insufficient to confer standing without showing the violation of a unique right or interest. We disagree.

A taxpayer must show special injury where he or she challenges an agency's lawful, discretionary act. American Legion, 116 Wash.2d at 7-8, 802 P.2d 784. Where a municipal corporation acts illegally, "it is a fair presumption that every taxpayer will be injured in some degree by such illegal act." Barnett v. Lincoln, 162 Wash. 613, 623, 299 P. 392 (1931). Here, the Taxpayers do not challenge a lawful discretionary act. Rather, they argue that the PUD lacks lawful authority to operate an appliance repair business. Thus, the Taxpayers are not required to demonstrate a unique injury. State ex rel. Boyles v. Whatcom County Superior Court, 103 Wash.2d 610, 694 P.2d 27 (1985).

But the PUD cites Greater Harbor 2000 v. City of Seattle, for setting the "unifying theme on standing ... that, for taxpayer status alone to be sufficient, there must be either some particularized injury to the taxpayer, or actual financial harm to the taxpaying public of which the plaintiff is a member." App. br. at 18. We are unable to read this theme into Greater Harbor.

In Greater Harbor, the lead opinion, with one concurring justice, reasoned that the taxpayers lacked standing to challenge a property exchange between the port authority and the city because taxpayers were not owners of land abutting the disputed exchange property, had suffered no unique injury, and were simply disagreeing with a discretionary act by the city. Greater Harbor 2000, 132 Wash.2d at 281-84, 937 P.2d 1082. Three justices concurred in the result on the basis that the issue was not ripe. Two justices agreed with the conclusion on the merits but disagreed with the lead opinion that the taxpayers had to show a personal stake in the outcome to have standing. Greater Harbor 2000, 132 Wash.2d at 286-87, 937 P.2d 1082. And two justices dissented, reasoning in part that the taxpayers did not have to show particular injury because they were challenging an unlawful act, not a discretionary act. Greater Harbor 2000, 132 Wash.2d at 300-01, 937 P.2d 1082.

We agree with Division One that Greater Harbor provides no help on taxpayer standing. Robinson v. City of Seattle, 102 Wash. App. 795, 10 P.3d 452 (2000). In Robinson, Division One held that Greater Harbor was not binding because it was a plurality opinion and represented a departure from previous Supreme Court precedent. Robinson, 102 Wash.App. at 805 n. 12,10 P.3d 452. Robinson concluded that the rule still was that "[t]axpayers need not allege a direct, special, or pecuniary interest in the outcome of the suit, but must demonstrate that their demand to the Attorney General to institute the action was refused." Robinson, 102 Wash. App. at 805,10 P.3d 452.

The PUD, however, argues that the lead opinion's standing analysis in Greater Harbor has been followed in Dean v. Lehman, 143 Wash.2d 12, 18 P.3d 523 (2001). In Dean, the spouses of prison inmates challenged a statute that allowed the Department of Corrections to deduct certain amounts from funds inmates received. The court stated the general standing rule: "`One who is not adversely affected by a statute may not question its validity.'... This basic rule of standing `prohibits a litigant ... from asserting the legal rights of another.' ... It also mandates that a party have a `real interest therein,' ... prior to...