State v. Econ. Dev. Bd. for Tacoma-Pierce Cnty.

• Decision Date: 21 May 2019
• Docket Number: No. 49892-8-II,49892-8-II
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. ECONOMIC DEVELOPMENT BOARD FOR TACOMA-PIERCE COUNTY, Tacoma-Pierce County Chamber, John Wolfe, in his official capacity as Chief Executive Officer for the Port of Tacoma, and Connie Bacon, Don Johnson, Dick Marzano, Don Meyer, and Clare Petrich, in their official capacities as Commissioners for the Port of Tacoma, Respondents.

441 P.3d 1269

STATE of Washington, Appellant,

v.ECONOMIC DEVELOPMENT BOARD FOR TACOMA-PIERCE COUNTY, Tacoma-Pierce County Chamber, John Wolfe, in his official capacity as Chief Executive Officer for the Port of Tacoma, and Connie Bacon, Don Johnson, Dick Marzano, Don Meyer, and Clare Petrich, in their official capacities as Commissioners for the Port of Tacoma, Respondents.

No. 49892-8-II

Court of Appeals of Washington, Division 2.

Filed May 21, 2019

Chad Corwyn Standifer, Office of the Attorney General, 1125 Washington St. Se, Po Box 40100, Olympia, WA, 98504-0100, Stephen Todd Sipe, Attorney at Law, 7141 Cleanwater Dr. Sw, Olympia, WA, 98504-0121, for Appellant.

Jason Matthew Whalen, Ledger Square Law, P.S., 710 Market St., Tacoma, WA, 98402-3712, Steven Goldstein, Betts Patterson & Mines PS, 701 Pike St. Ste. 1400, Seattle, WA, 98101-3927, Kathryn Naegeli Boling, Attorney at Law, 1011 N K St., Tacoma, WA, 98403-1829, Carolyn A. Lake, Seth S. Goodstein, Goodstein Law Group PLLC, 501 S G St., Tacoma, WA, 98405-4715, Daniel Lee Richards, Attorney at Law, 612 Trailblaze, Irvine, CA, 92618-0816, Valarie Standefer Zeeck, Gordon Thomas Honeywell LLP, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, for Respondents.

PUBLISHED OPINION

Worswick, P.J.¶1 The State appeals the summary judgment dismissal of its regulatory enforcement action against the Economic Development Board for Tacoma-Pierce County (EDB), Tacoma-Pierce County Chamber (Chamber), and the Port of Tacoma through its individual officers (Port). The State alleged that the EDB, the Chamber, and the Port (collectively, "defendants") failed to report independent expenditures as required by the Fair Campaign Practices Act (FCPA),¹ and that the Port used public funds to oppose ballot propositions.

¶2 The State argues that the defendants’ legal expenditures spent to block the Save Tacoma Water (STW) ballot propositions were "independent expenditures" as defined in RCW 42.17A.255, that the Port improperly used public funds to oppose the STW ballot proposition under RCW 42.17A.555,² and that the trial court improperly awarded fees and costs to the defendants.

¶3 The defendants argue that the State’s interpretation of RCW 42.17A.255 is erroneous and that it violates the First Amendment and renders the statute void for vagueness. The Port additionally argues that it did not improperly use public funds because its actions fall within two exceptions to the prohibition against the use of public facilities to oppose ballot propositions in RCW 42.17A.555.

¶4 We hold that the defendants made independent expenditures that required disclosure under RCW 42.17A.255, that RCW 42.17A.255 does not violate the First Amendment and is not void for vagueness, and that the Port used public facilities without meeting either cited exception in RCW 42.17A.555. Accordingly, we reverse the trial court’s order of dismissal, and we remand for further proceedings.³

FACTS

I. SAVE TACOMA WATER BALLOT PROPOSITION PROCEEDINGS

¶5 STW’s Charter Initiative 5 and Code Initiative 6 became local ballot propositions when citizens filed the initiatives with the Tacoma City Clerk before circulation for signatures. These two ballot propositions aimed to require any land use proposal in the City of Tacoma requesting a daily consumption of at least one million gallons of water be submitted to a public vote.

¶6 The defendants filed a declaratory judgment action against the STW ballot propositions, seeking a judicial directive preventing the STW ballot propositions from being placed on the local ballot. The defendants argued that the STW ballot propositions were beyond the scope of the City’s initiative power. Prior to filing the petition, the Port’s commissioners, at a public meeting, voted to ratify the Port’s decision to file a declaratory judgment action. Ultimately, the declaratory judgment action successfully blocked the provisions from being placed on the ballot. Port of Tacoma v. Save Tacoma Water , 4 Wash. App.2d 562, 579, 422 P.3d 917 (2018), review denied , 192 Wash.2d 1026, 435 P.3d 267 (2019).

II. FAIR CAMPAIGN PRACTICES ACT PROCEEDINGS

¶7 A citizen later filed a complaint with the attorney general, seeking information regarding the defendants’ use of funds to challenge the STW ballot propositions. At the request of the attorney general, the Public Disclosure Commission (PDC) staff reviewed the complaint against the defendants. PDC staff concluded that the EDB and the Chamber made independent expenditures as defined in RCW 42.17A.255. PDC staff also concluded that the Port did not violate RCW 42.17A.555. The PDC returned the matter to the attorney general with "no recommendation for legal action." Clerk’s Papers (CP) at 451. The PDC mentioned the need for additional rulemaking to provide greater clarity regarding these provisions.

¶8 Despite the PDC making no recommendation, the State, through the attorney general, filed this action against the defendants, seeking civil penalties and injunctive relief under the FCPA, chapter 42.17A RCW. The State alleged that the defendants failed to properly report independent expenditures made in opposition to the STW ballot propositions in violation of RCW 42.17A.255. Additionally, the State alleged that the Port, through its chief executive officer and its commissioners, impermissibly used public facilities to oppose the STW ballot propositions in violation of RCW 42.17A.555.

¶9 The defendants filed summary judgment motions to dismiss. The trial court granted the motions, dismissed the action, and awarded attorney fees and costs to the defendants. The State appeals.

ANALYSIS

I. LEGAL PRINCIPLES

A. Standard of Review

¶10 We review motions for summary judgment de novo. Voters Educ. Comm. v. Wash. State Pub. Disclosure Comm’n , 161 Wash.2d 470, 481, 166 P.3d 1174 (2007). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Here, there are no issues of material fact. Rather, the parties disagree on the FCPA’s statutory scheme and constitutionality.

¶11 We review de novo issues of statutory construction and constitutionality. State v. Evergreen Freedom Found. , 192 Wash.2d 782, 789, 432 P.3d 805 (2019). When engaging in statutory interpretation, we endeavor to determine and give effect to the legislature’s intent. Jametsky v. Olsen , 179 Wash.2d 756, 762, 317 P.3d 1003 (2014).

¶12 In determining the legislature’s intent, we must first examine the statute’s plain language and ordinary meaning. Jametsky , 179 Wash.2d at 762, 317 P.3d 1003. Legislative definitions included in the statute are controlling, but in the absence of a statutory definition, we give the term its plain and ordinary meaning as defined in the dictionary. Lockner v. Pierce County , 190 Wash.2d 526, 537, 415 P.3d 246 (2018) ; American Cont’l Ins. Co. v. Steen , 151 Wash.2d 512, 518, 91 P.3d 864 (2004). In addition, we consider the specific text of the relevant provision, the context of the entire statute, related provisions, and the statutory scheme as a whole when analyzing a statute’s plain language. Lowy v. PeaceHealth , 174 Wash.2d 769, 779, 280 P.3d 1078 (2012).

¶13 If there is more than one reasonable interpretation of the plain language, the statute is ambiguous. Evergreen , 192 Wash.2d at 789, 432 P.3d 805. When a statute is ambiguous, we resolve this ambiguity by engaging in statutory construction and considering other indications of legislative intent. Evergreen , 192 Wash.2d at 789-90, 432 P.3d 805. However, if the statute is unambiguous, we apply the statute’s plain meaning as an expression of legislative intent without considering other sources. Evergreen , 192 Wash.2d at 789, 432 P.3d 805.

B. Scope of Challenges to Local Ballot Propositions

¶14 Washington courts conduct pre-election review of local initiatives for only two types of challenges. Coppernoll v. Reed , 155 Wash.2d 290, 298-99, 119 P.3d 318 (2005) ; City of Port Angeles v. Our Water-Our Choice! , 170 Wash.2d 1, 7, 239 P.3d 589 (2010). Courts review challenges claiming either that a ballot measure does not comply with procedural requirements or that a ballot measure exceeds the direct legislative power of the initiative. Coppernoll , 155 Wash.2d at 298-99, 119 P.3d 318.

¶15 A litigant may challenge an initiative through a declaratory judgment action. See, e.g. , Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution , 185 Wash.2d 97, 101, 369 P.3d 140 (2016). To invoke the Uniform Declaratory Judgments Act, chapter 7.24 RCW a plaintiff must establish the four elements of a justiciable controversy:

"(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."

Coppernoll , 155 Wash.2d at 300, 119 P.3d 318 (emphasis added) (quoting To-Ro Trade Shows v. Collins , 144 Wash.2d 403, 411, 27 P.3d 1149 (2001) ). A party has standing to challenge a proposed initiative when its interest is within the zone of interests to be regulated or protected by the proposed law and the party will suffer an injury in fact. Spokane Entrepreneurial Ctr. , 185 Wash.2d at 103, 369 P.3d 140.

C. FCPA

¶16 The FCPA is designed, in part, "to provide the public with full disclosure of information about who funds initiative campaigns and who seeks to influence the initiative process." Evergreen , 192 Wash.2d at 790, 432 P.3d 805. The FCPA contains several policy statements. RCW 42.17A.001. Notably, the statute states that "political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided," that "the public’s right to know of the...