Snohomish County v. Anderson

Decision Date06 October 1994
Docket NumberNo. 60791-5,60791-5
Citation881 P.2d 240,124 Wn.2d 834
CourtWashington Supreme Court
PartiesSNOHOMISH COUNTY, The Snohomish County Council, Councilmembers Elizabeth McLaughlin, William Brubaker, Peter Hurley, Ross Kane and Karen Miller, and Robert J. Drewel, Snohomish County Executive, Dean Williams, Snohomish County Auditor, and Seth R. Dawson, Snohomish County Prosecutor, Respondents, v. Archie ANDERSON, Jim W. Misich, Debbie Walcker, Judy L. Setzer, Wade A. Boze, Mike Heminger, Terry Laxton, Barbara M. Miller, John Stokes, and David R. Montgomery, Defendants, Donald L. GRAHAM, Benjamin C. Sams, John R. Gintz, Ed Husmann, Floyd Ryan, David Pesznecker, Reginald H. Morris, Robert Strahm, Kenneth F. Spann, Keith P. Zylstra, Alvin L. Weston, Stacy Labish, Roger L. Finley, Harris A. Saltness, Judy Inderlied, and Darrell R. Harting, Appellants.

Patterson, Rowley & Schwimmer, Inc., P.S., Robert C. Rowley, Smith Law Firm, Douglas J. Smith, Everett, for appellants.

Seth Dawson, Snohomish County Prosecutor, Thomas Herrick Robertson, Deputy, Everett, for respondents.

Christine O. Gregoire, Atty. Gen., Tommy Prud'homme, Asst., Olympia, for State.

UTTER, Justice.

This action arises from an attempt by Snohomish County citizens to subject a Snohomish County ordinance to a referendum. The Snohomish County Council (County or Council) commenced an action against the citizens seeking and successfully securing a declaratory judgment the ordinance was not subject to a referendum. The citizens appeal two trial court rulings collectively granting the declaratory judgment and rejecting all but one of their counterclaims. The first ruling dismissed three of the counterclaims, holding the citizens lacked standing and the issues were neither justiciable nor ripe for review. The second ruling granted summary judgment to the County on its claim for declaratory relief as well as on all but one of the remaining counterclaims. We accepted accelerated review of the trial court's granting of declaratory relief to Snohomish County and disposed of that issue in favor of the County in Snohomish Cy. v. Anderson, 123 Wash.2d 151, 868 P.2d 116 (1994). The trial court's disposition of several remaining issues are affirmed on this appeal.

RCW 36.70A.210 requires various counties, including Snohomish County, to adopt a county-wide planning policy. This requirement is part of the State's Growth Management Act (GMA) and provides:

The legislative authority of a county that plans under RCW 36.70A.040 shall adopt a county-wide planning policy in cooperation with the cities located in whole or in part within the county ...

RCW 36.70A.210(2). A county-wide planning policy is defined as:

... a written policy statement or statements used solely for establishing a county-wide framework from which county and city comprehensive plans are developed and adopted RCW 36.70A.210(1). In early 1993, pursuant to this statutory obligation, the Council adopted a county-wide planning policy in the form of Snohomish County Ordinance 93-004. Shortly thereafter, several Snohomish County citizens signed a petition seeking to subject the ordinance to a referendum and delivered the petition to the Snohomish County Auditor. The County responded by seeking a declaratory judgment that the ordinance was not subject to a referendum. The defendants answered the claim and filed several counterclaims.

On June 22, 1993, Judge Joanne Alumbaugh granted a motion by the County to dismiss some of the counterclaims for lack of justiciability, lack of ripeness, and lack of standing 1 and denied two motions for reconsideration. On July 26, 1993, Judge William Howard granted the County's motion for summary judgment on its claim for declaratory relief and on several of the remaining counterclaims. 2

We accepted accelerated review of Judge Howard's finding that Ordinance 93-004 was not subject to a referendum and affirmed that component of his decision in an order dated October 7, 1993 and an opinion filed in January 1994. Snohomish Cy. v. Anderson, supra. We now review the remaining challenges.

The citizens ask us to consider whether the trial court erred by: (1) refusing to reach the merits of the citizens' "affirmative defense" alleging RCW 36.70A.210 is an unconstitutional delegation of power to the County; (2) dismissing their counterclaim that the 1991 amendment to the GMA is unconstitutional; (3) dismissing their counterclaim that Ordinance 93-004 is unconstitutional; (4) ruling in favor of the County on their counterclaim that writs of mandamus should have been issued; (5) ruling in favor of the County on their claim Snohomish County improperly expended public funds; (6) ruling in favor of the County on their counterclaim Snohomish County violated their civil rights; or (7) granting Snohomish County's motion for summary judgment on the issue whether Ordinance 93-004 is subject to a referendum. We conclude none of these actions constitutes reversible error.

As a preliminary matter we note that after briefing was completed by all parties the County moved to submit additional evidence reflecting the fact a Council member had resigned. We deny the motion. In addition, Appellant Morris's motion to strike an argument contained in the County's response brief, see Reply Brief of Appellants Husmann, Labish, Pesznecker and Morris, at 26, is denied. See RAP 17.4(d) (party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits). The denial of Morris's motion in any case is inconsequential since we do not reach the challenged argument.

I.

The citizens seek to reverse the trial court's refusal to reach the merits of one of their "affirmative defenses" to the County's complaint for a declaratory judgment that Ordinance 93-004 was not subject to referendum. See Amended Joint Br. of Appellants, at 15-19. Their contention that the trial court erred by refusing to determine whether RCW 36.70A.210 constitutes an unconstitutional delegation of power to the County is a contention without merit. An affirmative defense is a "matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it". Black's Law Dictionary (6th ed.1990), at 60.

The citizens argue that the unconstitutionality of a statute relied upon by a plaintiff provides a valid defense to the application of the statute. However, the case cited for this proposition is not controlling. In State ex rel. Eastvold v. Yelle, 46 Wash.2d 166, 279 P.2d 645 (1955), the Attorney General sought a warrant in a condemnation proceeding. The statute pursuant to which the warrant was sought was deemed unconstitutional because it would have permitted condemnation without a judicial determination as to just compensation. The warrant seeking condemnation without judicial determination of just compensation was therefore denied. Thus, in Eastvold, there was a direct correlation between the relief sought and the defense asserted. In contrast, there is no such direct correlation between the affirmative defense asserted by the citizens and the issue whether Ordinance 93-004 is subject to a referendum. Proof that RCW 36.70A.210 is an unconstitutional delegation of power to the County in no way secures or guarantees the citizens' right to subject the ordinance to a referendum. The trial court did not err by declining to reach the merits of this "defense".

II.

The citizens also claim the trial court erred by dismissing their counterclaim which asserted that the 1991 amendment to the GMA is unconstitutional. On appeal, they offer three reasons in support of this contention. First, they assert the amendment violates Const. art. 11, § 11 3 because it gives counties the power to impose their land-use policy decisions upon cities. We decline to review this claim since it was not made as part of the original claim of unconstitutionality. State v. Riley, 121 Wash.2d 22, 30, 846 P.2d 1365 (1993) (an issue not briefed or argued in the trial court will not be considered on appeal).

Second, the citizens argue the amendment violates Const. art. 2, § 1 4 because it delegates unfettered discretion to the governor to impose sanctions on cities which do not comply with certain mandates in the statute. Am. Joint Br. of Appellants, at 39-41. Finally, they claim the amendment violates Const. art. 2, § 19 5 because Senate House Bill 1025, 52d Legislature (1991), bore the title "An Act Relating to Growth Strategies" but in fact affected vital revenue acts. Amended Joint Br. of Appellants, at 41-43. The trial court rejected these latter two contentions because it held that the citizens lacked standing to make these challenges to the constitutionality of the statute and that these claims were not justiciable or ripe.

A challenge to the constitutionality of a statute by means of a declaratory judgment must be justiciable before it will be considered. See, e.g., State ex rel. Graham v. Northshore School Dist. 417, 99 Wash.2d 232, 246, 662 P.2d 38 (1983) (an actual dispute must exist). For a declaratory judgment controversy to be justiciable, there must exist:

(1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.

DiNino v. State, 102 Wash.2d 327, 330-31, 684 P.2d 1297 (1984) (quoting Clallam Cy. Deputy Sheriff's Guild v. Board of Clallam Cy. Comm'rs, 92 Wash.2d 844, 848, 601 P.2d 943 (1979)).

The citizens' challenge under Const. art. 2, § 1 is not justiciable because there is no actual, present and existing dispute, or the mature seeds of one. None of the sanctions provisions are alleged to have been implemented. Thus,...

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