No On I-502, Arthur West v. Norml , 193 Wash. App. 368 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
April 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NO ON I-502, ARTHUR WEST, No. 46640-6-II
Appellants,
v.
WASHINGTON NORML, PIERCE COUNTY PUBLISHED OPINION
NORML, AMERICAN CIVIL LIBERTIES
UNION, ACLU OF WASHINGTON, ACLU
FOUNDATION, ACLU ENDOWMENT,
Respondents.
JOHANSON, J. — Arthur West appeals a superior court order dismissing his complaint that
alleged a violation of the Fair Campaign Practices Act (FCPA), ch. 42.17A RCW. The superior
court ruled that West could not bring an FCPA action as a self-represented (pro se) litigant because
the FCPA requires that such actions be maintained in the name of the state. West argues that the
trial court erred by dismissing his suit because the FCPA contemplates that individuals may file
“citizen’s actions” under the statute without representation of legal counsel. Although the FCPA
speaks of “persons” and “individuals,” a citizen’s action under the FCPA precludes suits by pro se
litigants because such actions must be brought in the name of the state. Therefore, we hold that
the superior court did not err in dismissing West’s suit and we affirm.
No. 46640-6-II
FACTS
In 2012, Washington voters approved Initiative 502 (I-502), the legislation which legalized
marijuana for recreational use. LAWS OF 2013, ch. 3. In December 2012, West, on behalf of “No
on I-502,” an organization that opposed I-502, sued the American Civil Liberties Union (ACLU)
and the Pierce County and Washington Chapters of the National Organization for the Reform of
Marijuana Laws (NORML). West attempted to sue under the “citizen’s action” provision of the
FCPA.
West’s complaint alleged that the ACLU and NORML, in supporting I-502, had engaged
in electoral politics without registering as political action committees in violation of state law.
West alleged that by so acting, NORML violated its own articles of incorporation and engaged in
conduct prohibited to entities registered as nonprofit organizations under 26 U.S.C. § 501(c).
In response, the ACLU, joined by NORML, moved to dismiss West’s suit based in part on
what it alleged was West’s inability to maintain the action as a pro se litigant. In the ACLU and
NORML’s view, although the FCPA authorizes “citizen’s actions” for alleged violations of the
Act, the statute requires that such actions be filed in the name of the state. Therefore, West was
representing the state’s interests. Because West is not a licensed attorney, NORML argued that
his prosecution of the alleged FCPA violations would amount to the unauthorized practice of law,
which Washington law forbids. NORML asked the superior court to dismiss West’s complaint
under CR 12(b)(1) for lack of subject matter jurisdiction and also under CR 12(b)(6) for failure to
state a claim upon which relief can be granted.
The superior court agreed that West could not sue in the name of the state as a pro se litigant
and entered an order dismissing the action if West did not obtain legal representation within two
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weeks. The superior court ruled that it would not permit West to proceed without counsel in this
action because doing so would constitute the unauthorized practice of law. A licensed attorney
then appeared on behalf of West, but shortly thereafter withdrew.
Subsequently, West moved for voluntary dismissal of the ACLU but maintained his claims
against NORML. Nearly a year later, when West had still failed to secure the services of an
attorney, the superior court dismissed the case, consistent with its original order. West appeals.
ANALYSIS
West argues that the superior court erred in dismissing his complaint by failing to construe
the applicable statutory provisions liberally to effectuate the statute’s remedial intent. He asserts
further that the superior court erred by misinterpreting the citizen’s action provision of the FCPA,
which states that “persons” and “individuals” may bring such actions. We disagree.
An order granting a motion to dismiss under CR 12(b) is subject to de novo review.
McMarthy Fin., Inc. v. Premera, 182 Wash. 2d 936, 941, 347 P.3d 872 (2015). The FCPA “shall be
liberally construed to promote complete disclosure of all information respecting the financing of
political campaigns and lobbying, and the financial affairs of elected officials and candidates, and
full access to public records so as to assure continuing public confidence of fairness of elections
and governmental processes, and so as to assure that the public interest will be fully protected.”
RCW 42.17A.001; Utter v. Bldg. Indus. Ass’n of Wash., 182 Wash. 2d 398, 406, 341 P.3d 953, cert.
denied, 136 S. Ct. 79 (2015).
A provision within the FCPA gives Washington citizens the right to sue for unfair
campaign practices provided that certain prerequisites have been met. Utter, 182 Wash. 2d at 407.
The “citizen’s action” is permitted when the attorney general and the prosecuting attorney of a
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certain county either fail to commence or opt not to commence an action under the FCPA within
a specified period of time. RCW 41.17A.765(4)(a)(i).
Specifically, the citizen’s action provision provides,
A person who has notified the attorney general and the prosecuting attorney in the
county in which the violation occurred in writing that there is reason to believe that
some provision of this chapter is being or has been violated may himself or herself
bring in the name of the state any of the actions (hereinafter referred to as a citizen’s
action) authorized under this chapter.
....
(b) If the person who brings the citizen’s action prevails, the judgment
awarded shall escheat to the state, but he or she shall be entitled to be reimbursed
by the state of Washington for costs and attorneys’ fees he or she has incurred.
RCW 42.17A.765(4) (emphasis added). For the FCPA, “person” “includes an individual,
partnership, joint venture, public or private corporation, association, federal, state, or local
governmental entity or agency however constituted, candidate, committee, political committee,
political party, executive committee thereof, or any other organization or group of persons,
however organized.” RCW 41.17A.005(35).
West relies on the language of the statute and the definition of “person” to support his
argument that the law permits him to maintain a citizen’s action as a pro se litigant. According to
West, the references to “persons” as individuals and using “himself” or “herself” in the controlling
provision combined with the FCPA’s stated policy of liberal construction, compel the conclusion
that the superior court erred by dismissing his case solely because he failed to obtain representation
by a licensed attorney.
West, however, fails to reconcile this argument with the long-standing rule that, with
limited exception, Washington law requires individuals appearing before the court on behalf of
another party or entity to be licensed in the practice of law. Dutch Vill. Mall v. Pelletti, 162 Wash.
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App. 531, 535, 256 P.3d 1251 (2011). Ordinarily, only those persons licensed to practice law in
this state may do so without liability for unauthorized practice. See RCW 2.48.170. Practicing
law without a license is a gross misdemeanor in Washington. RCW 2.48.180(3)(a); Advocates for
Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 155 Wash. App. 479, 485, 230 P.3d 608,
rev’d on other grounds, 170 Wash. 2d 577, 245 P.3d 764 (2010).
There is a recognized “pro se exception” to these general rules where a person “‘may
appear and act in any court as his own attorney without threat of sanction for unauthorized
practice.’” Cottringer v. Dep’t of Emp’t Sec., 162 Wash. App. 782, 787, 257 P.3d 667 (2011)
(quoting Wash. State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wash. 2d 48, 56, 586
P.2d 870 (1978)). But this pro se exception is limited, applying “‘only if the layperson is acting
solely on his own behalf’ with respect to his own legal rights and obligations.” Cottringer, 162
Wash. App. at 787-88 (quoting Wash. State Bar Ass’n, 91 Wash. 2d at 57).
Here, notwithstanding a person’s right to bring a citizen’s action under the FCPA, the Act
itself expressly provides that any such action may be brought only in the name of the state. RCW
42.17A.765(4). The person has a right to sue if certain criteria are met, but the underlying claim
always belongs to the state. The FCPA also provides that any judgment awarded based on an
alleged violation of the Act escheats to the state. RCW 42.17A.765(4)(b). Thus, by maintaining
this action, West is not acting “‘solely on his own behalf’ with respect to his own legal rights and
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obligations.”1 Cottringer, 162 Wash. App. at 787-88 (quoting Wash. State Bar Ass’n, 91 Wash. 2d at
57). Instead, he is necessarily acting on behalf of the state, implicating rights that belong to the
state.
West makes no attempt to demonstrate that the pro se exception applies nor does he provide
any analogous authority to support his argument. Although the citizen’s action provision speaks
in terms of individuals, corporations are also included in the definition of “person” under the
FCPA. RCW 42.17A.005(35). And our courts have long held that corporations must appear in
court through an attorney. Advocates for Responsible Dev., 155 Wn. App at 484-85. This is true
even when a pro se litigant is the sole owner, member, and officer of a limited liability company.
Dutch Vill. Mall, 162 Wash. App. at 534, 539. These rules lend credence to NORML’s assertion
that the legislature did not intend to carve out a pro se exception specific to citizen’s actions merely
because it provides “persons” the right to maintain actions under FCPA.
Although no Washington court has addressed this specific question, a decision from the
Ninth Circuit Court of Appeals is instructive and analogous. In Stoner v. Santa Clara County
Office of Education, 502 F.3d 1116, 1128 (9th Cir. 2007), the Ninth Circuit held that a pro se party
could not prosecute a qui tam action on behalf of the United States. Stoner involved an alleged
violation of the False Claims Act, 31 U.S.C. §§ 3729-3733. 502 F.3d at 1119. The statute at issue
there provided that a “person may bring a civil action . . . for the person and for the United States
1
In his complaint, West claims to be an officer of “No on I-502” who is authorized by its board to
maintain this action. It is not clear from the record whether “No on 1-502” still exists. But to the
extent West brings this suit as an agent of “No on I 502,” he also acts on that group’s behalf and
not solely on his own behalf. Therefore, the pro se exception would not apply for this reason as
well.
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Government” and stated that such an action would be brought in the name of the government. 31
U.S.C. § 3730(b)(1). In holding that this language did not authorize Stoner to proceed pro se, the
Stoner court reasoned that a party suing under the statute is not prosecuting only their “‘own case.’”
502 F.3d at 1126-27. Instead, the party also represents the United States, binding it to any adverse
judgment. Stoner, 502 F.3d at 1126-27.
The Ninth Circuit then noted that while the legislation at issue there gave an individual a
“‘right to conduct the action,’” Stoner could point to no language which would permit him to
conduct the action without a licensed attorney. Stoner, 502 F.3d at 1127 (quoting 31 U.S.C. §
3730(c)(3)). The court concluded that because congress did not expressly authorize a party to
proceed pro se when acting on behalf of the United States, “it ‘must have had in mind that such a
suit would be carried on in accordance with the established procedure which requires that only one
licensed to practice law may conduct proceedings in court for anyone other than himself.’” Stoner,
502 F.3d at 1127 (quoting United States v. Onan, 190 F.2d 1, 6 (8th Cir. 1951)).
The circumstances here are similar. The FCPA provides “persons” the right to bring a
citizen’s action, but mandates that such actions be brought in the name of the State. RCW
42.17A.765(4). As in Stoner, West here seeks to prosecute an alleged FCPA violation not solely
as his “own case,” but necessarily on behalf of the state of Washington. Although the state would
not be bound to an adverse judgment under this statutory scheme, it would be entitled to the award
of any favorable judgment. RCW 42.17A.765(4)(b). In this way, West is not acting solely on his
own behalf regarding his own legal rights and obligations.
As in Stoner, West can point to no language which permits him to proceed pro se and the
legislature here did not specifically authorize citizen’s actions to be maintained by pro se litigants.
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It appears as though the legislature envisioned that such actions would be carried on by licensed
attorneys because the statute expressly provides for an award of attorney fees if the person who
sues prevails. RCW 42.17A.765(4)(b).
We hold that no pro se exception applies here because West is not acting solely on his own
behalf. Therefore, permitting him to maintain this action without representation by a licensed
attorney would amount to the unauthorized practice of law. We affirm the superior court’s
dismissal of West’s suit against NORML.2
JOHANSON, J.
We concur:
WORSWICK, P.J.
LEE, J.
2
West also attempts to argue the substantive merits of his underlying claim regarding NORML’s
alleged violation of the FCPA. But because it dismissed his complaint, the superior court never
reached those issues and made no ruling related to them. As a result, these issues are not properly
before us and we decline to address them.
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