1 FILED 2020 JAN 24 02:45 PM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 19-2-30171-6 SEA 2 3 4 THE HONORABLE MARSHALL FERGUSON 5 6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 7 8 9 10 11 12 IN AND FOR THE COUNTY OF KING GARFIELD COUNTY TRANSPORTATION AUTHORITY; KING COUNTY; CITY OF SEATTLE; WASHINGTON STATE TRANSIT ASSOCIATION; ASSOCIATION OF WASHINGTON CITIES; PORT OF SEATTLE; INTERCITY TRANSIT; AMALGAMATED TRANSIT UNION LEGISLATIVE COUNCIL OF WASHINGTON, and MICHAEL ROGERS, NO. 19-2-30171-6 SEA INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 13 Plaintiffs, 14 vs. NOTED FOR MOTION DOCKET: February 7, 2020 @ 9:00 a.m. 15 16 STATE OF WASHINGTON, Defendant. 17 18 I. 19 INTRODUCTION Though Pierce County joins with the State of Washington in requesting the Court deny 20 Plaintiff’s summary judgment and adopts the State’s responsive arguments as to all other issues, 21 it files this separate response addressing Article 11, Section 12 of the Washington Constitution. 22 23 24 II. SUMMARY JUDGMENT ON ARTICLE 11, SECTION 12 SHOULD BE DENIED Plaintiffs’ argument that they are entitled to summary judgment because I-976 violates Article 11, section 12 is - by its own admission – deficient. Plaintiffs state that “[a]lthough much INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 1 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713 1 ink has been spilled addressing the first provision of section 12… very little attention has been 2 given to the final clause in section 12…” Ps’ SJ Mot. 42. Summary judgment is only appropriate 3 where “there is no genuine issue as to any material fact and that the moving party is entitled to a 4 judgment as a matter of law.” CR 56(c) (emphasis added). Being entitled to summary judgment 5 as a matter of law requires that the relevant law be settled. See, e.g. Wood v. Battle Ground 6 School Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001) (holding that application of the OPMA to 7 email messages was a matter of first impression, which precluded summary judgment); 8 Hillhaven Properties Ltd. v. Sellen Const. Co., Inc., 133 Wn. 2d 751, 948 P.2d 796 (1997) (hold- 9 ing that application of the known loss doctrine was a matter of first impression, which precluded 10 summary judgment). Plaintiffs’ own statement that “very little attention has been given” to this 11 legal argument is an admission that summary judgment is inappropriate. This Court’s analysis of 12 the Plaintiffs’ article 11, section 12 argument should thus begin and end here. 13 For this same reason, the State’s argument on this issue – to the extent it asserts Pierce 14 Cty. v. State, 150 Wn.2d 422, 436, 78 P.3d 640 (2003) (“Pierce Cty. I”) “foreclosed this argu- 15 ment” – also goes too far. See 1/24/20 State’s Opp. To SJ, § “C.” Though the State correctly 16 notes “Plaintiffs cite no case in which a municipal government has successfully asserted a vested 17 right against amendment or repeal of a state statute granting authority to the municipality,” it is 18 itself mistaken when it asserts there is a case that “rejects their argument.” Id. Indeed, Pierce Cty 19 I -- the single case upon which the State relies on this issue – was never presented with the Plain- 20 tiff’s argument that local taxing power cannot be removed by the state legislature or the vote of 21 those outside the taxing authority after it has been exercised and is being collected by a local 22 23 24 INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 2 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713 1 government for local purposes.1 Thus Pierce Cty I never “rejected” Plaintiff’s argument in this 2 case, and if it had it would have been dicta and thus not binding – much less “settled law.” See 3 e.g. Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 8–9, 977 P.2d 570 (1999)(a statement is dicta 4 when it is not necessary to the court's decision in a case); Hildahl v. Bringolf, 101 Wn. App. 634, 5 650–51, 5 P.3d 38 (2000)(Dicta is not binding authority). 6 This Court therefore neither should, nor needs to, rule on the unsettled vesting issue un- 7 der Article 11, Section 12. Rather, all that matters as to that issue is the absence of precedent to 8 support a holding one way or the other and that such precludes Plaintiffs from meeting both: 1) 9 their aforementioned burden on summary judgment, and 2) the underlying test necessary to over- 10 turn I-976. As to the latter, initiatives that have been passed by the voters are presumed constitu- 11 tional. Amalgamated Transit Union Local 587 v. State, 142 Wn. 2d 183, 205, 11 P.3d 762 (2000) 12 (ATU). To overcome this presumption, Plaintiffs’ “must, by argument and research, convince the 13 court that there is no reasonable doubt that the statute violates the constitution.” Island County v. 14 State, 135 Wn. 2d 141, 147, 955 P.2d 377 (1998) (emphasis added). Cases defining the term 15 “vest” within the context of proprietary and contractual rights, and cases addressing different leg- 16 islative enactments than the type at hand, can hardly be said to establish beyond a reasonable 17 doubt that I-976 violates article 11, section 12 of Washington’s constitution. Because Plaintiffs 18 cannot establish a violation of article 11, section 12 beyond a reasonable doubt, this Court is not 19 required to determine whether I-976 violates article 11, section 12. It is sufficient to conclude in- 20 stead that Plaintiffs have failed to meet their “heavy burden.” ATU, 142 Wn.2d at 205. 21 Thus, Plaintiffs’ motion for summary judgment on the basis of article 11, section 12, 22 23 24 1 Instead, in Pierce Cty I respondents only argued I-776 violated “precepts of local home rule” under article XI, sections 4 and 12, because the repeal of local MVET authority “imposed a tax on those local governments by requiring them to find other funding sources for local transportation projects.” 150 Wn.2d at 429, 440. INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 3 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713 1 2 3 should be denied. III. CONCLUSION For the above stated reasons, as well as those asserted on issues other than article 11, sec- 4 tion 12 in the State’s opposition brief, Pierce County respectfully requests the Court deny Plain- 5 tiff’s motion for summary Judgment in its entirety. 6 7 DATED this 24th day of January, 2020. MARY E. ROBNETT Prosecuting Attorney 8 9 10 11 12 13 s/ DANIEL R. HAMILTON DANIEL R. HAMILTON, WSBA # 14658 s/ FRANK A. CORNELIUS FRANK A. CORNELIUS, WSBA # 29590 Pierce County Prosecutor / Civil 955 Tacoma Avenue South, Suite 301 Tacoma, WA 98402-2160 Ph: 253-798-7746 / Fax: 253-798-6713 dan.hamilton@piercecountywa.gov frank.cornelius@piercecountywa.gov 14 15 16 17 18 19 20 21 22 23 24 INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 4 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713 1 CERTIFICATE OF SERVICE 2 On January 24, 2020, I hereby certify that I electronically filed the foregoing INTERVENORDEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court and I delivered a true and accurate copy electronically to the following: 3 4 5 6 7 8 9 COUNSEL FOR CITY OF SEATTLE: Carolyn Boies, WSBA #40395 Erica Franklin, WSBA #43477 John B. Schochet, WSBA #35869 Carolyn.Boies@seattle.gov Erica.Franklin@seattle.gov John.Schochet@seattle.gov Marisa.Johnson@seattle.gov COUNSEL FOR KING COUNTY: David Hackett, WSBA #21236 David J. Eldred, WSBA #26125 Erin B. Jackson, WSBA #49627 Jenifer C. Merkel, WSBA #34472 David.Hackett@kingcounty.gov David.Eldred@kingcounty.gov Erin.Jackson@kingcounty.gov Jenifer.Merkel@kingcounty.gov rmunozcintron@kingcounty.gov COUNSEL FOR STATE OF WASHINGTON: Alan D. Copsey, WSBA #23305 Alicia Young, WSBA #35553 Karl Smith, WSBA #41988 Lauryn Fraas, WSBA #53238 Alan.Copsey@atg.wa.gov Alicia.Young@atg.wa.gov Karl.Smith@atg.wa.gov Lauryn.Fraas@atg.wa.gov Noah.Purcell@atg.wa.gov Kristin.Jensen@atg.wa.gov Rebecca.Davilasimmons@atg.wa.gov Morgan.Mills@atg.wa.gov COUNSEL FOR PLAINTIFFS WASHINGTON STATE TRANSIT ASSOCIATION, ASSOCIATION OF WASHINGTON CITIES, PORT OF SEATTLE, GARFIELD COUNTY TRANSPORTATION AUTHORITY, INTERCITY TRANSIT, AMALGAMATED TRANSIT UNION LEGISLATIVE COUNCIL OF WASHINGTON, AND MICHAEL ROGERS: Paul J. Lawrence, WSBA #13557 Matthew J. Segal, WSBA #29797 Jessica A. Skelton, WSBA #36748 Shae Blood, WSBA #51889 Paul.Lawrence@pacificalawgroup.com Matthew.Segal@pacificalawgroup.com Jessica.Skelton@pacificalawgroup.com Shae.Blood@pacificalawgroup.com Sydney.Henderson@pacificalawgroup.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 5 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713 1 2 3 COUNSEL FOR TRANSIT RIDERS UNION WASHGTON ADAPT CLIMATE SOLUTIONS: Knoll Lowney, WSBA #23457 knoll@smithandlowney.com 4 5 6 7 8 9 10 11 12 COUNSEL FOR TIMOTHY EYMAN, JACK FAGAN AND MICHAEL FAGAN: Mark D. Kimball, WSBA #13146 Joel F. Murray, WSBA #44786 mkimball@mdklaw.com joel@joelmurray.org COUNSEL FOR CLINT DIDIER, KEVIN HEINEN, MATTHEW MORELL, JOHN LOGUE, PARKER OLSEN: Stephen W. Pidgeon, WSBA #25265 Stephen.pidgeon@comcast.net s/ JEANINE L. LANTZ JEANINE L. LANTZ Legal Assistant Pierce County Prosecutor's Office Civil Division, Suite 301 955 Tacoma Avenue South Tacoma, WA 98402-2160 Ph: 253-798- 6083 / Fax: 253-798-6713 13 14 15 16 17 18 19 20 21 22 23 24 INTERVENOR-DEFENDANT PIERCE COUNTY'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 6 MSJ Response.docx Cause No. 19-2-30171-6 SEA Pierce County Prosecuting Attorney/Civil Division 955 Tacoma Avenue South, Suite 301 Tacoma, Washington 98402-2160 Main: (253) 798-6732 / Fax: (253) 798-6713