West v. Seattle Port Comm'n

• Decision Date: 05 July 2016
• Docket Number: No. 73014–2–I,73014–2–I
• Citation: 380 P.3d 82,194 Wash.App. 821
• Court: Washington Court of Appeals
• Parties: Arthur West, Appellant, v. Seattle Port Commission, Tacoma Port Commission, Port of Tacoma, Port of Seattle, Clare Petrich, Don Johnson, Richard Marzano, Don Meyer, Connie Bacon, Tom Abro, Stephanie Bowman, Bill Bryant, John Creighton, Courtney Gregoire, Respondents.

194 Wash.App. 821

380 P.3d 82

Arthur West, Appellant,

v.Seattle Port Commission, Tacoma Port Commission, Port of Tacoma, Port of Seattle, Clare Petrich, Don Johnson, Richard Marzano, Don Meyer, Connie Bacon, Tom Abro, Stephanie Bowman, Bill Bryant, John Creighton, Courtney Gregoire, Respondents.

No. 73014–2–I

Court of Appeals of Washington, Division 1.

FILED: July 5, 2016

Arthur West, 120 State Avenue NE, # 1497, Olympia, WA, 98501, Appearing Pro Se.

Timothy George Leyh, Shane P. Cramer, Calfo Harrigan Leyh & Eakes, LLP, 999 3rd Avenue Suite 4400, Seattle, WA, 98104–4022, Carolyn A. Lake, Seth S. Goodstein, Goodstein Law Group PLLC, 501 S G St., Tacoma, WA, 98405–4715, Counsel for Respondents.

Trickey

, J.

¶ 1 Arthur West sued the Port of Tacoma and the Port of Seattle for violating the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW. The Ports moved for dismissal for failure to state a claim. The Port of Tacoma claimed West lacked standing to bring his OPMA claim. The Port of Seattle argued that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101

–41309, preempted this application of the OPMA. The trial court granted both motions.

¶ 2 Because the OPMA authorizes any person to file an action, we hold that the trial court erred when it concluded that West lacked standing. But, because we hold that complying with the OPMA would frustrate the purposes of the Shipping Act in this case, we affirm the dismissal of West's claims.

FACTS

¶ 3 The Commissioners of the Port of Tacoma and Port of Seattle conducted a series of confidential meetings between May and September 2014. West became aware of the meetings in September 2014 and sought to attend one. The Ports explained that the Federal Shipping Act authorized their meetings and allowed them to keep the meetings confidential. Therefore, they claimed, the meetings were not subject to the OPMA. West was not allowed to attend any of the meetings.

¶ 4 West filed suit against both Ports and several individual commissioners on September 26, 2014. He sought a declaratory judgment and sanctions under the OPMA. The Ports moved to dismiss West's complaint for failure to state a claim because he lacked standing and federal law preempted the OPMA for this type of meeting. The trial court granted both motions to dismiss with prejudice. West appeals the dismissal of his OPMA claims.

ANALYSIS

Motions to Dismiss

¶ 5 West argues that the trial court erred when it dismissed his OPMA claims for “failure to state a claim upon which relief can be granted.” CR 12(b)(6)

. When deciding whether to dismiss under this standard, the court assumes all the plaintiff's factual allegations are true and “may consider hypothetical facts supporting the plaintiff's claims.” Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206 (2007). Dismissal is appropriate only where “it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery.” Tenore v. AT&T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998).

¶ 6 We review dismissal under CR 12(b)(6)

de novo as a question of law. Tenore, 136 Wash.2d at 329–30, 962 P.2d 104. We also review questions of standing, statutory interpretation, and preemption de novo. Trinity Universal Ins. Co. of Kansas v. Ohio Cas. Ins. Co., 176 Wash.App. 185, 199, 312 P.3d 976 (2013), review denied, 179 Wash.2d 1010, 316 P.3d 494 (2014) (standing); State v. Mitchell, 169 Wash.2d 437, 442, 237 P.3d 282 (2010) (statutory interpretation); Veit, ex rel. Nelson v. Burlington N. Santa Fe Corp., 171 Wash.2d 88, 99, 249 P.3d 607 (2011) (preemption).

¶ 7 The trial court granted the Port of Tacoma's motion to dismiss on the grounds that West lacked standing under the OPMA to bring his claims. It also granted the Port of Seattle's separate motion to dismiss West's claims under CR 12(b)(6)

because the Shipping Act preempted the OPMA in these circumstances.

Standing

¶ 8 The threshold question in this case is whether West has standing under the OPMA to bring this claim against the Ports. The trial court held that he did not. We agree with West that this was error.

¶ 9 “The claims of a plaintiff who lacks standing cannot be resolved on the merits and must fail.” Trinity Universal Ins., 176 Wash.App. at 199, 312 P.3d 976

. Questions of standing under Washington law begin with the statutes themselves. See, e.g., Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 802, 83 P.3d 419 (2004) (looking first to the language of the Uniform Declaratory Judgments Act, chapter 7.24 RCW, to determine whether a party had standing).

¶ 10 Courts give effect to the plain meaning of unambiguous statutes. West v. Wash. Ass'n of Cty. Officials, 162 Wash.App. 120, 130, 252 P.3d 406 (2011)

. Courts may look at the provision of a statute in context to determine its plain meaning. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 10, 43 P.3d 4 (2002).

¶ 11 Here, West seeks to bring suit under the OPMA. The act requires that “[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency.” RCW 42.30.030

.

¶ 12 The standing requirements in the OPMA are very broad: “Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of this chapter by members of a governing body.” RCW 42.30.130

. And “[a]ny person” may bring an action to enforce civil penalties against members of a governing body who attend meetings in violation of the OPMA. RCW 42.30.120.

¶ 13 The statute does not define “person” or limit the people eligible to bring claims under the act. RCW 42.30.130

. It does not indicate that a person seeking standing must show a particular injury or satisfy a rigorous standing test. A permissive standing requirement is in line with the legislature's declaration that “the people ... do not yield their sovereignty” and “insist on remaining informed” and the OPMA's instruction to construe the statute liberally. RCW 42.30.010, .910.

¶ 14 Few published cases have addressed the OPMA's standing requirements. In Lopp v. Peninsula School District No. 401

, the Washington State Supreme Court concluded that RCW 42.30.130 “allows anyone standing to challenge the validity of a governing body's action.” 90 Wash.2d 754, 757, 585 P.2d 801 (1978). But the court later determined that a plaintiff did not have “standing to raise the matter of improper notice” to a specific member of a governing body. Kirk v. Pierce Cty. Fire Prot. Dist. No. 21, 95 Wash.2d 769, 772, 630 P.2d 930 (1981).

¶ 15 In Kirk

, a board of fire commissioners terminated the fire chief through a special meeting.¹ 95 Wash.2d at 770–71, 630 P.2d 930. The board, allegedly, did not properly notify one of the commissioners of the meeting. Kirk, 95 Wash.2d at 772, 630 P.2d 930. The terminated fire chief sought to invalidate the action taken at the meeting, on the grounds that the failure to notify one of the commissioners violated the OPMA. Kirk, 95 Wash.2d at 771–72, 630 P.2d 930. The court ruled that only the aggrieved commissioner, who did not receive proper notice, would have had standing to raise the issue. Kirk, 95 Wash.2d at 772, 630 P.2d 930.

¶ 16 The different results in Kirk

and Lopp may be due to the different relief they sought. The plaintiff in Lopp sought to enjoin a school district from selling bonds and to fine the individual board members of the school district. 90 Wash.2d at 755, 585 P.2d 801. Both actions are contemplated in RCW 42.30.120and .130. The fire chief in Kirk

sought to invalidate action taken at an earlier meeting. 95 Wash.2d at 771, 630 P.2d 930. Although the OPMA declares that “[a]ny action taken at meetings failing to comply with [chapter 42.30 RCW] shall be and void” it does not authorize individual people to annul or invalidate those actions. RCW 42.30.060(1).

¶ 17 Additionally, Kirk

is distinguishable on its facts. There, the OPMA violation at issue was improper notice to a specific person. Kirk, 95 Wash.2d at 771, 630 P.2d 930. There was no claim that anyone, including the fire chief, was prohibited from attending the meeting. By contrast, West claims he was personally denied access to the Ports' meetings.

¶ 18 Accordingly, Kirk

did not establish more stringent requirements for standing under RCW 42.30.120 or .130 than those suggested by the statute's plain language. This conclusion is consistent with cases following Kirk that have allowed OPMA actions to proceed without analyzing standing. See, e.g., West, 162 Wash.App. at 127, 252 P.3d 406 ; Eugster v. City of Spokane, 128 Wash.App. 1, 7, 114 P.3d 1200 (2005). Therefore, West, a person, has standing to bring actions under the OPMA.

¶ 19 The Ports also claim that Washington draws its standing requirements from federal law, citing High Tide Seafoods v. State, 106 Wash.2d 695, 702, 725 P.2d 411 (1986)

. While the court followed federal authority in High Tide Seafoods, the plaintiffs there sought to invalidate Washington's tax code on the basis of federal authority: the United States Constitution and treaty rights of Indians. 106 Wash.2d at 701–02, 725 P.2d 411

. Therefore, the court was addressing standing under federal law, not Washington law. High Tide Seafoods, 106 Wash.2d at 701–02, 725 P.2d 411. There was no assertion in that case that Washington's standing doctrine is always parallel to its federal counterpart.

¶ 20 The Ports rely heavily on Lujan v. Defenders of Wildlife

and other federal cases to support their argument that West does not have standing because he cannot demonstrate any injury.

504 U.S. 555, 577, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)

.² This line of cases does not automatically apply to Washington courts interpreting Washington law.

¶ 21 The Court held in Lujan

that Congress, although able to establish new categories of cognizable injuries, did not have the authority to confer standing by statute on plaintiffs who had...