State v. Evergreen Freedom Found.

This opinion was filed for record
rriTE
IN CLERKS OFFICE at 8 .on.
8UPRB«s couFrr, ctate of WASHmcTOW
j DATE JAN 1 0 2019
SUSAN L. CARLSON
cmeFJusrice
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 95281-7
Respondent,
En Banc
EVERGREEN FREEDOM FOUNDATION
cFb/a FREEDOM FOUNDATION,
Petitioner. Filed 1 0 2019
J
MADSEN,J.—This case involves statutory interpretation concerning application
ofthe reporting requirements contained in the Fair Campaign Practices Act(FCPA),
chapter 42.17A ROW. The specific issue is how the FCPA reporting requirements in
RCW 42.17A.255 and the definition in RCW 42.17A.005(4)("ballot proposition")' are to
be applied in the context of local initiatives. For the reasons explained below, we hold
'The FCPA was amended twice in the recent legislative session. Laws of 2018, chapter 111
does not take effect until January 1, 2019. Laws of 2018, chapter 304 took effect June 7, 2018,
but the amendments to RCW 42.17A.255 in that bill were vetoed. The amendments otherwise
added a definition unrelated to this case, but resulted in the "ballot proposition" definition at
issue here to be renumbered as RCW 42.17A.005(5). To avoid confusion, and to remain
consistent with the parties' briefing, we refer to the relevant definitional subsection addressing
"ballot proposition" by its former designation as RCW 42.17A.005(4).
No. 95281-7
that under the eircumstances of this case, pro bono legal services, which Evergreen
Freedom Foundation provided to initiative proponents, were reportable to the Public
Disclosure Commission(PDC)under the above noted statutes. We affirm the Court of
Appeals' reversal ofthe trial court's CR 12(b)(6) dismissal of the State s FCPA
regulatory enforcement action and remand to the trial court for further proceedings.
FACTS
In 2014, Evergreen Freedom Foundation(EFF)staff created sample municipal
ordinances and ballot propositions for citizens to use to advance certain causes to their
local city councils or commissions. Local residents in the cities of Sequim, Chelan, and
Shelton utilized those samples in filing two ballot propositions in each city, one to require
collective bargaining negotiation sessions to be publicly conducted and the second to
prohibit union security clauses in city collective bargaining agreements.
The proponents submitted the proposed measures to their local city clerks along
with signatures they had gathered in support ofthe measures. They asked their respective
city councils or commissions either to pass the measures as local ordinances or, if the
councils or commissions did not agree, to alternatively place each measure on the local
ballot for a vote. None ofthe cities passed the measures as ordinances or placed the
ballot propositions on the local ballots.^
^ The cities of Chelan and Shelton voted to neither adopt the propositions nor place them on the
ballot. The city of Sequim concluded that it would table the issue until a later meeting but never
acted further.
No. 95281-7
In response, EFF employees, who are attorneys, participated in lawsuits against
each jurisdiction on behalf ofthe local resident proponents. Each suit sought a judicial
directive to the respective city to put each measure on the local ballot. Each lawsuit
ended in a superior court dismissing the case, and those decisions were not appealed.
EFF did not file any campaign finance disclosure reports with the PDC identifying
the value of the legal services it provided to the resident proponents in support ofthe
local ballot propositions.^ In February 2015, the attorney general received a citizen
action complaint about EFF's failure to report the value of legal services it provided in
support of these local ballot measures.'^ The State conducted an investigation and then
filed a civil regulatory enforcement action against EFF in Thurston County Superior
Court, alleging that EFF failed to report independent expenditures it made in support of
the noted local ballot propositions.^
^ As discussed below, the FCPA,RCW 42.17A.255, requires a person (organization) to file a
report with the PDC disclosing all "independent expenditures" totaling $100 or more during the
same election campaign. RCW 42.17A.255(2). Subsection (1)ofthat statue defines
"independent expenditure" as "any expenditure that is made in support of or in opposition to any
candidate or ballot proposition." RCW 42.17A.255(1). "Ballot proposition" is defined in RCW
42.17A.005(4) as
any "measure" as defined by RCW 29A.04.091 [i.e., "any proposition or question
submitted to the voters"], or any initiative, recall, or referendum proposition
proposed to be submitted to the voters of the state or any municipal corporation,
political subdivision, or other voting constituency from and after the time when
the proposition has been initiallyfiled with the appropriate election officer of that
constituency before its circulationfor signatures.
(Emphasis added.)
'^The letter was filed on behalf of the Committee for Transparency in Elections and contained
notice that if the State did not take action within 45 days, the complainant intended to file a
citizen's action against EFF "as authorized under[RCW]42.17A.765(4)." Clerk's Papers at 65.
^ No other citizen action complaints related to these loeal ballot propositions have been filed with
the Attorney General's Office.
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EFF moved to dismiss the State's enforeement action, asserting that the local
propositions were not "ballot propositions" as defined in RCW 42.17A.005(4). Clerk's
Papers at 24. EFF argued that because the local initiative process generally requires
signatures to be gathered and submitted before the ballot propositions are filed with the
local elections official, the local propositions were not "ballot propositions" under RCW
42.17A.005(4) and, therefore, no disclosure was required unless and until the proposition
became a "measure" placed on a ballot. Id. at 19-33.
The State opposed the motion and the statutory interpretation asserted by EFF.
The State argued that EFF's reading of the statute would effectively exclude from public
disclosure all funds raised and spent on local ballot propositions until they advanced to
the ballot, contrary to the stated purpose and intent of the FCPA.
The superior court granted EFF's motion for dismissal under CR 12(b)(6)(failure
to state a claim). It found the statutes at issue here to be "ambiguous and vague."
Verbatim Report ofProceedings at 23. The superior court further found that the State
had not "sufficiently established that this situation involved a ballot measure that gave
them the opportunity to require that such be reported," explaining that "such" meant
"legal services that were provided on a pro bono basis before the matter ever went to any
kind of vote." Id. at 23-24.
The State sought direct review and this court transferred the ease to Division Two
of the Court of Appeals. Order, State v. Evergreen Freedom Found., No. 93232-8
(Wash. Mar. 29, 2017). The Court of Appeals reversed, holding in a partially published
opinion that "under the only reasonable interpretation" of the definition of"ballot
No. 95281-7
proposition" in the FCPA,the local initiatives qualified as ballot propositions at the time
EFF provided legal services because the initiatives had been filed with local election
officials. State v. Evergreen Freedom Found., 1 Wn. App. 2d 288, 293, 404 P.3d 618(2017)(published in part). The Court of Appeals also rejected EPF's argument that
reporting requirements could apply only to electioneering that occurs once a proposition
has been placed on the ballot. Id. at 306. The court concluded that RCW 42.17A.255
does not violate EPF's First Amendment rights. Id. at 307. In the unpublished portion of
the opinion, the Court of Appeals rejected EPF's other arguments, including that the
statute is unconstitutionally vague. Evergreen Freedom Found., No. 50224-l-II, slip op.
(unpublished portion) at 22-24, http://www.courts.wa.gov/opinions/pdf/D2%2050224-l-
II%20Published%200pinion.pdf. EFF petitioned for review, which this court granted.
State V. Evergreen Freedom Found., 190 Wn.2d 1002(2018).
ANALYSIS
Standard of Review
This court reviews issues of statutory construction and constitutionality de novo.
State V. Evans, 111 Wn.2d 186, 191, 298 P.3d 724(2013); Columbia Riverkeeper v. Port
of Vancouver USA, 188 Wn.2d421,432, 395 P.3d 1031 (2017). When possible, this
court derives legislative intent from the plain language enacted by the legislature; "[pjlain
language that is not ambiguous does not require construction." Evans, 111 Wn.2d at 192.
However, if more than one interpretation of the plain language is reasonable, the statute is
ambiguous, and the court must then engage in statutory construction. Id. at 192-93. The
No. 95281-7
court may then look to legislative history for assistance in discerning legislative intent.
Id. at 193.
In construing a statute, the fundamental objective is to ascertain and carry out the
people's or the legislature's intent. See Lake v. Woodcreek Homeowners Ass'n, 169
Wn.2d 516, 526, 243 P.3d 1283 (2010). This court looks to the entire '"context ofthe
statute in which the provision is found,[as well as] related provisions, amendments to the
provision, and the statutory scheme as a whole.'" State v. Conover, 183 Wn.2d 706, 711,
355 P.3d 1093(2015)(quoting 'n of Wash. Spirits & Wine Distribs. v. Wash. State
Liquor Control Bd, 182 Wn.2d 342, 350, 340 P.3d 849(2015)); see also G-P Gypsum
Corp. V. Dep''t ofRevenue, 169 Wn.2d304, 310, 237 P.3d 256(2010)("enacted
statement of legislative purpose is included in a plain reading of a statute").
The meaning of words in a statute is not gleaned from [the] words
alone but from "all the terms and provisions of the act in relation to the
subject of the legislation, the nature of the act, the general object to be
accomplished and consequences that would result from construing the
particular statute in one way or another."
Burns v. City ofSeattle, 161 Wn.2d 129, 146, 164 P.3d 475(2007)(internal quotation
marks omitted)(quoting v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994)); see
also Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4(2002)
(clarifying "plain meaning" is "discerned from all that the Legislature has said in the
statute and related statutes which disclose legislative intent about the provision in
question").
No. 95281-7
FCPA Background and Application
In 1972, voters in Washington adopted Initiative 276 (1-276), which established
the PDC and formed the basis of Washington's campaign finance laws. Voters Educ.
Comm. V. Pub. Disclosure Comm'n, 161 Wn.2d 470,479, 166 P.3d 1174(2007). 1-276 is
codified in portions of chapter 42.I7A RCW,which is now known as the FCPA. RCW
42.I7A.909. 1-276 was 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. See LAWS OF 1973, eh. 1, § 1. In 1-276, the people declared that it
would be
the public policy ofthe State of Washington:
(I)That political campaign and lobbying contributions and
expenditures befully disclosed to the public and that secrecy is to be
avoided.
(10) That the public's right to know of the financing of political
campaigns and lobbying and the financial affairs of elected officials and
candidates far outweighs any right that these matters remain secret and
private.
(II).. . The provisions of this act shall be liberally construed to
promote complete disclosure of all information respecting the financing of
political campaigns and lobbying.
Laws of 1973, ch. 1, § 1 (emphasis added); see also RCW 42.17A.001(1),(10),(11).
With a 72 percent supporting vote, Washington voters adopted 1-276 and required
financial disclosure for campaigns, including those related to initiatives, referenda, and
ballot measures. Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 996 (9th Cir.
2010).
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1-276 established reporting requirements for anyone supporting or opposing a
"ballot proposition." LAWS OF 1973, ch. 1, §§ 2(2), 10(1); see also id. §§ 3-11 (1-276
provisions establishing reporting requirements); RCW 42.17A.255. For example, an
'"independent expenditure' [is] any expenditure that is made in support ofor in
opposition to any candidate or ballot proposition and is not otherwise required to be
reported." RCW 42.17A.255(1)(emphasis added). Reporting requirements are triggered
once an expenditure amount crosses a threshold of$100. RCW 42.17A.255(2).^
1-276 defined "ballot proposition" to mean "any 'measure' as defined by [former]
R.C.W. 29.01.110, or any initiative, recall, or referendum proposition proposed to be
submitted to the voters of any specific constituency which has beenfiled with the
appropriate election officer ofthat constituency." LAWS OF 1973, ch. 1, § 2(2)(emphasis
added). When 1-276 was adopted in 1972,"measure" meant "any proposition or question
submitted to the voters of any specific constituency." LAWS OF 1965, ch. 9, § 29.01.110;
former RCW 29.01.110 (1972).^
In 1975, soon after the adoption of1-276, the legislature made adjustments to the
definition of"ballot proposition" to clarify that the term applied to both statewide and
local initiatives, recalls, and referenda:
^ As originally adopted in 1-276, this provision was worded differently, but it reflected the same
intent: "Any person who makes an expenditure in support of or in opposition to any candidate or
proposition (except to the extent that a contribution is made directly to a candidate or political
committee), in the aggregate amount of one hundred dollars or more during an election
campaign, shall file with the [PDC] a report." Laws of 1973, ch. 1, § 10(1).
^In 2003, the legislature removed the last phrase of the definition of"measure," so that the term
now includes "any proposition or question submitted to the voters." Laws of 2003, ch. 111, §
117. Former RCW 29.01.110 is now codified as RCW 29A.04.091.
8
No. 95281-7
"Ballot proposition" means any "measure" as defined by [former] RCW
29.01.110, or any initiative, recall, or referendum proposition proposed to
be submitted to the voters of((any specific)) the state or anv municipal
corporation, political subdivision or other voting constituency ((which))
from and after the time when such proposition has been initiallv filed with
the appropriate election officer ofthat constituency prior to its circulation
for signatures.
Laws of 1975, 1st Ex. Sess., ch. 294, § 2(2). Thus, the 1975 legislature clarified that
"ballot proposition" includes local propositions "from and after the time when such
proposition has been initially filed with the appropriate election officer . .. prior to its
circulation for signatures."^ Id.
As noted, the 1975 legislature added the language in the definition that refers
specifically to "any municipal corporation, political subdivision or other voting
constituency." Id. It simultaneously added "prior to its circulation for signatures." Id.
The issue here is that the procedures for statewide and local initiatives differ. For
a statewide initiative, many steps have to be navigated before the signature gathering
stage is reached: the proponent files the proposed initiative with the secretary of state
(RCW 29A.72.010), the code reviser reviews and then certifies that(s)he has reviewed
the proposed measure and suggested revisions to the proponent(RCW 29A.72.020), then
the secretary of state gives the proposed measure a serial number(RCW 29A.72.040),
then the attorney general formulates a ballot title and summary(RCW 29A.72.060), and
any person dissatisfied with the title or summary may appeal to the superior court(RCW
^ The definition of"ballot proposition" has since been updated to reflect the current codification
of the definition of"measure" and to replace "prior to" with "before," but it otherwise remains
the same today. RCW 42.17A.005(4); see Laws OF 2010, ch. 204, § 101(4).
No. 95281-7
29A.72.080); after all that, the proponent then begins gathering signatures(RCW
29A.72.090-.150). See generally RCW 29A.72.010-.150. If an initiative to the people
has sufficient valid signatures, it goes on the ballot at the next general election. CONST,
art. II, § 1. If an initiative to the legislature has sufficient valid signatures, it is presented
to the legislature first, but if the legislature declines to adopt it, the initiative appears on
the following general election ballot. Id. § 1(a).
For a local initiative, the proponent generally gathers signatures and submits them
along with the proposed ballot measure to the local election official. See RCW
35.17.260. If the petition contains the required number of valid signatures, the city's or
the town's council or commission must either pass the proposed ordinance or submit the
proposition to a vote ofthe people.^ Id.
Thus, RCW 42.17A.005(4)'s language fits neatly with the statewide initiative
procedures, but it creates tension as to the noted local initiative procedures in that the
second prong ofRCW 42.I7A.005(4) expressly applies to both state and local initiatives,
but its final phrase,"before its circulation for signatures," seems at odds with the local
initiative procedures noted above.
^ See also RCW 35.17.240-.360 (authorizing cities using the commission form of government to
adopt the initiative and referendum processes); RCW 35A.11.100 (authorizing same processes
for noncharter code cities); Sequim Municipal Code 1.15 (adopting the initiative and
referendum processes set forth in RCW 35A.11.080-.100); Shelton City Code 1.24.010
(adopting the initiative and referendum processes in chapter 35.17 RCW,via adoption of chapter
35A.11 RCW); cf. Chelan Municipal Code 2.48.050-.210 (providing for the initiative
process),.080 (providing sponsors with an extended 90-day window within which to gather
sufficient valid signatures after the initiative is initially submitted).
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No. 95281-7
The State argues that "[p]re-amendment, the definition already incorporated
propositions as soon as they were filed and it already incorporated signature gathering for
state initiatives, so there was no need to add the phrase 'prior to circulation for
signatures' unless the legislature intended to clarify that the definition also covers the
signature-gathering period for local propositions.'" State of Washington's Suppl. Br. at
9. In the State's view, the amendment "ensured the statute would be applied according to
the people's purpose: full and complete public disclosure of expenditures related to
ballot propositions, including those made before a proposition appears on the ballot." Id.
This is a fair and plain reading ofthe above statute, giving effect to all its parts. And, as
importantly, the State's reading of the statute comports with the FCPA's stated policy and
express directive that its provisions be "liberally construed to promote complete
disclosure of all information respecting the financing of political campaigns." RCW
42.17A.001(11); see Campbell & Gwinn, 146 Wn.2d at 11 (plain meaning is discerned
from all that the legislature has said in the statute and related statutes); see also Filo
Foods, LLCv. City ofSeaTac, 183 Wn.2d 770, 792-93, 357 P.3d 1040(2015)(this court
assumes the legislature does not intend to create inconsistency and, thus, reads statutes
together to achieve a hannonious total statutory scheme that maintains each statute's
integrity).
As noted, the original definition of"ballot proposition" in the FCPA included "any initiative
. . . proposed to be submitted to the voters of any specific constituency which has been filed with
the appropriate election officer of that constituency." Laws of 1973, ch. 1, § 2(2). For
statewide initiatives, this definition already incorporated the signature-gathering phase because,
for a statewide initiative, the sponsor must file the proposed initiative before circulating it for
signatures. See RCW 29A.72.010-.150 (discussed above).
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No. 95281-7
EFF counters that the plain language ofthe statute controls, arguing that because
the signatures were already gathered when the proposed initiatives were filed with the
local election officials, the definition of"ballot proposition" is not met and no reporting
requirement is triggered. But this reading not only undermines the stated purpose of the
FCPA,it also ignores the language added to RCW 42.17A.005(4)in 1975 that expressly
applies that provision to local initiatives.
EFF further contends that RCW 42.17A.005(4) and RCW 42.17A.255(1)"apply
only to electioneering," which EFF contends never occurred here because the local
initiatives were never placed on the ballot. EFF Suppl. Br. at 11 (emphasis omitted).
First, EFF's reliance on Brumsickle as supporting EFF's contention is misplaced. That
case did not so hold. See id.(misquoting BrumsicklQ, 624 F.3d at 998). Further, as
noted, both statutes at issue here broadly impose reporting requirements concerning "any
expenditure that is made in support of or in opposition to any candidate or ballot
proposition" RCW 42.17A.255(1)(emphasis added), with "ballot proposition" defined
to include "any initiative . . . proposed to be submitted to the voters." RCW
42.17A.005(4)(emphasis added). The noted language is simply not restricted to
electioneering, as EFF asserts. Moreover, where litigation is being employed as a tool to
block adoption of an initiative or to force an initiative onto the ballot, as was attempted
here, the finances enabling such support(or opposition) would indeed appear to fall
within the "any expenditure," triggering the reporting obligation noted above. The
contention that litigation support does not qualify as a reportable independent expenditure
ignores the express purpose of the FCPA in the context of modem politics. See, e.g.,
12
No. 95281-7
Huffv. Wyman, 184 Wn.2d 643, 645, 361 P.3d 727(2015)(litigation brought by initiative
opponents seeking to enjoin placement of initiative on the ballot); Filo Foods, LLC v.
City ofSeaTac, 179 Wn. App. 401, 403, 319 P.3d 817(2014)(litigation over whether a
local minimum wage initiative qualified for the ballot).^'
In sum, giving meaning to all ofthe language in RCW 42.17A.005(4) and
complying with the FCPA's directive for liberal construction, we determine that the
amended language in RCW 42.17A.005(4) was intended to pick up the expenditures prior
to signature gathering, regardless of when they are gathered, but only if the measure is
actually filed with an election official. Applying this holding here, and in light of the
FCPA's history, purpose, and the particular facts of this case, EPF's pro bono legal
services were reportable to the PDC under RCW 42.17A.255 and RCW 42.17A.005(4).
The FCPA Provisions Are Not Unconstitutionallv Vague
EPF contends that RCW 42.17A.255(1) and RCW 42.17A.005(4) are
unconstitutionally vague because "[n]o reasonable person can know how to conform to
the applicable statutory requirements." EPF Suppl. Br. at 16-17. We disagree.
"EPF cites Coloradansfor a Better Future v. Campaign Integrity Watchdog, 2018 CO 6, 409
P.3d 350, as supporting its viewpoint, but that case is inapposite. The court there held that
uncompensated legal services to a political organization were "not 'contributions' to a political
organization under Colorado's campaign-finance laws." Id. at 41. But that determination
turned on application of specific statutory language that is not present here. Id. at 28-40.
EFF also cites to Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012), but that case is also
inapposite. There, the Ninth Circuit Court of Appeals affirmed the grant of a preliminary
injunction barring enforcement of a statute that imposed contribution limits regarding a political
(recall) committee. But that case applied a different standard in the contributions limitations
context (i.e., applying "closely drawn" scrutiny to contribution limits based on a First
Amendment challenge). Id. at 865 n.6. As discussed below, that is not the appropriate standard
here.
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No. 95281-7
Statutes are presumed to be constitutional, and the party asserting that a statute is
unconstitutionally vague must prove its vagueness beyond a reasonable doubt. Voters
Educ. Comm., 161 Wn.2d at 481. In the First Amendment context, the asserting party
may allege that a statute is either facially invalid or invalid as applied. Am. Legion Post
No. 149 V. Dep't ofHealth, 164 Wn.2d 570, 612, 192 P.3d 306 (2008). A facial
challenge asserts that the statute cannot be properly applied in any context. City of
Spokane v. Douglass, 115 Wn.2d 171, 182 n.7, 795 P.2d 693 (1990). In an as applied
challenge, the statute must be considered in light ofthe facts of the specific case before
the court. Am. Legion Post, 164 Wn.2d at 612.
'"A statute is void for vagueness if it is framed in terms so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to its
application. The purpose of the vagueness doctrine is to ensure that citizens receive fair
notice as to what conduct is proscribed, and to prevent the law from being arbitrarily
enforced.'" In re Contested Election ofSchoessler, 140 Wn.2d 368, 388, 998 P.2d 818(2000)(internal quotation marks omitted)(quoting F/ia/ey v. Med. Disciplinary Bd., 117
Wn.2d 720, 739-40, 818 P.2d 1062(1991)). However, vagueness is not simply
uncertainty as to the meaning of a statute. Am. Legion Post, 164 Wn.2d at 613. In
determining whether a statute is sufficiently definite, the provision in question must be
considered within the context of the entire enactment and the language used must be
afforded a sensible, meaningful, and practical interpretation. Id. "A court should not
invalidate a statute simply because it could have been drafted with greater precision." Id.
Moreover,'"a statute is not unconstitutionally vague merely because a person cannot
14
No. 95281-7
predict with complete certainty the exact point at which [that person's] actions would be
classified as prohibited conduct.'" Schoessler, 140 Wn.2d at 389 (alteration in original)
(quoting City ofSeattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988)).
A statute's language is sufficiently clear when it provides explicit standards for
those who apply them and provides a person of ordinary intelligence a reasonable
opportunity to know what is prohibited. Voters Educ. Comm., 161 Wn.2dat489. Here,
EPF contends that the definition of"ballot proposition" cannot apply to local initiatives
and the obligation to report independent expenditures cannot apply to activities beyond
electioneering. But those assertions are refuted by the statutory language as discussed
herein. As explained above, a local initiative becomes a ballot proposition when it is
filed with local elections officials, and here all of the initiatives in question were filed
before EPF expended resources to support them. RCW 42.17A.005(4). Accordingly, the
portions of the PCPA at issue here(RCW 42.17A.255 and .005(4)) are not
unconstitutionally vague as applied. Likewise, there is no facial invalidity because the
statutes at issue establish a clear course of conduct, requiring persons to report their
independent expenditures. Any nonexempt independent expenditures in support of a
ballot proposition must be reported under RCW 42.17A.255. EPF has not shown that
there is no set of facts, including the circumstances here, in which the statute could not be
constitutionally applied. Douglass, 115 Wn.2d at 182 n.7. We hold that RCW
42.17A.005(4) and RCW 42.17A.255 are not unconstitutionally vague.
15
No. 95281-7
The FCPA Provisions Do Not Violate the First Amendment
EFF contends that the "State's enforcement action impermissibly infringes on the
Foundation's [First Amendment] free speech and privacy of association rights." EFF
Suppl. Br. at 21; U.S. CONST, amend. I. We disagree.
In addressing a First Amendment challenge to the "independent expenditure"
provision ofthe FCPA at issue here, the Ninth Circuit Court of Appeals concluded in
Brumsickle, 624 F.3d at 994-95, that "Washington State's disclosure requirements do not
violate the First Amendment." The Ninth Circuit court noted that the Supreme Court had
concluded that "the government'may regulate corporate political speech through
disclaimer and disclosure requirements, but it may not suppress that speech altogether.'"
Id. at 994 (quoting Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 319, 130 S.
Ct. 876, 175 L. Ed. 2d 753 (2010)). "[A] campaign finance disclosure requirement is
constitutional if it survives exacting scrutiny, meaning that it is substantially related to a
sufficiently important governmental interest." Id. at 1005 (emphasis added). As the
Citizens United Court held,'"[Djisclosure requirements may burden the ability to speak,
but they impose no ceiling on campaign-related activities and do not prevent anyone from
speaking.'" Id.(internal quotation marks and citation omitted)(quoting Citizens United,
558 U.S. at 366). Accordingly,"exacting scrutiny applies in the campaign finance
disclosure context." Id.(citing Citizens United, 588 U.S. at 366-67; Doe v. Reed, 561
U.S. 186, 196, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010); Davis v. Fed Election
Comm'n, 554 U.S. 724, 728-30, 128 S. Ct. 2759, 171 L. Ed. 2d 12,1 (2008)).
16
No. 95281-7
In explaining the governmental interest at stake, the Brumsickle court noted that
providing information to the electorate is "vital to the efficient functioning ofthe
marketplace of ideas, and thus to advancing the democratic objectives underlying the
First Amendment." Id. Such vital provision of information has been repeatedly
recognized as "a sufficiently important, if not compelling, governmental interest." Id. at
1005-06. The Ninth Circuit expounded on the importance of disclosure regarding
candidates, and then drew parallels regarding ballot measures.
[Djisclosure provides the electorate with information "as to where political
campaign money comes from and how it is spent by the candidate" in order
to aid the voters in evaluating those who seek federal office. It allows
voters to place each candidate in the political spectrum more precisely than
is often possible solely on the basis of party labels and campaign speeches.
The sources of a candidate's financial support also alert the voter to the
interests to which a candidate is most likely to be responsive and thus
facilitate predictions of future performance in office.
Id. at 1006 (alteration in original)(quoting Buckley v. Valeo, 424 U.S. 1, 66-67, 96 S. Ct.
612,46 L. Ed. 2d 659(1976)).
Relevant here, the court observed that such considerations apply equally for voter-
decided ballot measures. Id. "In the ballot initiative context, where voters are
responsible for taking positions on some of the day's most contentious and technical
issues, '[vjoters act as legislators,' while 'interest groups and individuals advocating a
measure's defeat or passage act as lobbyists.'" Id.(quoting Cat. Pro-Life Council, Inc. v.
Getman, 328 F.3d 1088, 1106 (9th Cir. 2003)). The "high stakes of the ballot context
only amplify the crucial need to inform the electorate that is well recognized in the
context of candidate elections." Id.17
No. 95281-7
Campaign finance disclosure requirements .. . advance the
important and well-recognized governmental interest of providing the
voting public with the information with which to assess the various
messages vying for their attention in the marketplace of ideas. An appeal to
cast one's vote a particular way might prove persuasive when made or
financed by one source, but the same argument might fall on deaf ears
when made or financed by another. The increased "transparency"
engendered by disclosure laws "enables the electorate to make informed
decisions and give proper weight to different speakers and messages."
Citizens United,[558 U.S. at 371]. As the Supreme Court has stated:
"[T]he people in our democracy are entrusted with the responsibility for
judging and evaluating the relative merits of conflicting arguments. They
may consider, in making their judgment, the source and credibility of the
advocate." [First Nat'l Bank v. Bellotti, 435 U.S. 765, 791-92, 98 S. Ct.
1407, 55 L. Ed. 2d 707 (1978)]. Disclosure requirements, like those in
Washington's Disclosure Law, allow the people in our democracy to do just
that.
Id. at 1008 (third alteration in original). The Brumsickle court concluded that "[tjhere is a
substantial relationship between Washington State's interest in informing the electorate
and the definitions and disclosure requirements it employs to advance that interest." Id.
at 1023; see also Voters Educ. Comm., 161 Wn.2d at 483 (the right to free speech held by
organizations that engage in political speech includes a "fundamental counterpart" that is
the public's right to receive information); State ex rel. Pub. Disclosure Comm 'n v.
Permanent Offense, 136 Wn. App. Til, 284, 150 P.3d 568(2006)("Washington State
has a substantial interest in providing the electorate with valuable information about who
is promoting ballot measures and why they are doing so[;] ... it is particularly important
. . . that voters know whether other influences—^particularly money—are affecting those
who are otherwise known as grass-roots organizers.").
Given the State's important governmental interest in informing the public about
the influence and money behind ballot measures, as noted above, and the FPCA's vital
18
No. 95281-7
role (via application of RCW 42.17A.255 and RCW 42.17A.005(4))in advancing that
interest, the disclosure requirement that operates under these statutes satisfies the
exacting scrutiny standard. Accordingly, there is no impermissible infringement of
EPF's First Amendment rights, and we so hold.
CONCLUSION
We affirm the Court of Appeals' reversal ofthe trial court's CR 12(b)(6) dismissal
of the State's regulatory enforcement action under the FCPA. Under the circumstances
of this case, EPF's pro bono legal services were reportable to the PDC under RCW
42.17A.255 and RCW 42.17A.005(4). Those statutes are not unconstitutionally vague,
nor does their application here violate EPF's First Amendment rights. We remand to the
trial court for further proceedings.
19
No. 95281-7
/
WE CONCUR:
20
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
No. 95281-7
GORDON McCLOUD,J.(dissenting)—The Fair Campaign Practices Act
(FCPA), chapter 42.17A ROW,establishes requirements for political spending and
reporting. One FCPA statute requires people and organizations that make certain
political expenditures to report those expenditures to the Public Disclosure
Commission. It is well established that such a reporting requirement implicates the
First Amendment right to free speech. U.S. Const, amend. I; Utter v. Bldg. Indus.
Ass'n of Wash., 182 Wn.2d 398, 341 P.3d 953 (2015); Voters Educ. Comm. v.
Public Disclosure Comm 'n, 161 Wn.2d 470, 166 P.3d 1174 (2007); Human Life of
Wash. Inc. v. Brumsickle, 624 F.3d 990(9th Cir. 2010).
In this case, both the trial court and the Court of Appeals expressly
acknowledged that the FCPA is ambiguous with respect to whether it compels
reporting of independent expenditures in support of initiatives not yet on the ballot
in noncharter cities. Clerk's Papers(CP)at 102 (order); Verbatim Report of
Proceedings(May 13, 2016)(VRP)at 23; State v. Evergreen Freedom Found.,
1 Wn. App. 2d 288, 303,404 P.3d 618 (2017)(published in part). The majority
implicitly acknowledges the same thing. Majority at 10. The majority resolves
1
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
that ambiguity against the speaker and in favor of the government. But resolving
an ambiguity in a statute implicating free speech against the speaker and in favor
of the government violates controlling precedent ofthis court and of the United
States Supreme Court.
I therefore respectfully dissent.
Background
The State brought a civil enforcement action against Evergreen Freedom
Foundation (Foundation)for failing to report independent expenditures in support
of several "ballot propositions." CP at 5-10 (State's complaint); see also
RCW 42.17A.255(3)(requiring reporting of independent expenditures in support
of ballot propositions). Under the FCPA, a "ballot proposition" is
any "measure" as defined by RCW 29A.04.091, or any initiative,
recall, or referendum proposition proposed to be submitted to the
voters of the state or any municipal corporation, political subdivision,
or other voting constituency from and after the time when the
proposition has been initially filed with the appropriate election
officer of that constituency before its circulationfor signatures
Former RCW 42.17A.005(4)(2014), recodifiedas RCW 42.17A.005(5)(LAWS OF
2018, ch. 304, § 2)(emphasis added).
' Under RCW 29A.04.091, a '"[mjeasure' includes any proposition or question
submitted to the voters."
2
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
The Foundation admits that it did not report the expenditures at issue here—
free legal representation for citizens attempting to place initiatives on the ballot in
their municipalities. CP at 14-18 (Foundation's answer). The Foundation defends
itself on the ground that its expenditures were not reportable. It argues that the
FCPA's RCW 42.17A.255 requires a person or organization to report expenditures
for "ballot propositions" "after" the submission to the election officer, which is
"before its circulation for signatures." But the initiatives at issue here were not
submitted to the election officer before circulation for signatures. The Foundation
therefore concludes that those initiatives did not constitute ballot propositions
within the meaning of former RCW 42.17A.005(4). CP at 22-28 (Foundation's
motion to dismiss).
The Foundation continues that even if the initiatives did constitute ballot
propositions within the meaning offormer RCW 42.17A.005(4), that definition—
particularly the language italicized above—is unconstitutionally vague as applied
in this case. VRP at 8-9; Foundation's Suppl. Br. 13-17; Wash. Supreme Court
oral argument, State v. Evergreen Freedom Found., No. 95281-7(June 28, 2018),
at 9 min., 18 sec. through 10 min., 32 sec., video recording by TVW, Wash. State's
Public Affairs Network, https://www.tvw.org/watch/?eventID=2018061095.
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
The language of the statute defining "ballot proposition" is certainly
confusing as applied to this case as the trial court, appellate court, and majority all
note. The reason is that in this case, citizens were attempting to place initiatives on
the ballot in three noncharter cities: Sequim, Shelton, and Chelan.^ CP at 7. The
initiative process in noncharter cities differs from the initiative process for
statewide measures and the initiative process for certain charter cities. In
noncharter cities, an initiative's proponent gathers signatures first and officially
files the initiative with the city after. By contrast, at the statewide level and in
certain charter cities, the proponent files first and gathers signatures after.
Compare RCW 35.17.260 (establishing procedures for initiatives in cities with the
commission form of government)a«<7RCW 35A.11.100 (generally adopting for
code cities the initiative procedures used in cities with the commission form of
government), with chapter 29A.72 RCW (establishing procedures for statewide
initiatives). See also RCW 35.22.200 (recognizing that charter cities "may provide
for direct legislation by the people through the initiative"); e.g., SEATTLE City
^ See Sequim Municipal Code 1.16.010 (identifying Sequim as a code city);
Shelton Municipal Code 1.24.010 (identifying Shelton as a code city); Chelan
Municipal Code 1.08.010 (identifying Chelan as a code city).
4
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
Charter art. IV,§ 1.B; Seattle Municipal Code ch. 2.08; Tacoma City
Charter art. II, § 2.19.
There is no dispute that former RCW 42.17A.005(4) would have covered the
Sequim, Shelton, and Chelan initiatives if they had made it onto the ballot, because
at that point they would have fallen within the definition of reportable "measures"
in cross-referenced RCW 29A.04.091. The issue in this case is whether former
RCW 42.17A.005(4) encompasses initiatives not yet on the ballot in such
noncharter cities.^
The trial court concluded that the tension between the statute's language and
the initiative process in noncharter cities could not be resolved. It noted that it had
"difficulty working through [the statutes] and understanding the position ofthe
parties[] because there is not a clearly stated policy regarding this kind of a
situation ...." VRP at 23. It therefore held that former RCW 42.17A.005(4) was
"ambiguous and vague." Id. Accordingly, it granted the Foundation's CR 12(b)(6)
^ I assume for the purposes of this opinion that the Foundation's provision offree
legal representation to the citizens trying to place the initiatives on their local ballots
qualifies as "independent expenditures" under RCW 42.17A.255(1). The majority makes
the same assumption. As the Court of Appeals noted, the Foundation has not argued
otherwise. Evergreen Freedom Found., 1 Wn. App. 2d at 306 n.5.
5
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCIoud, J., dissenting)
motion to dismiss for failure to state a claim on which relief could be granted. CP
at 102 (order).
The Court of Appeals agreed that former RCW 42.17A.005(4) was
"ambiguous" and added that the statute was "confusing." 1 Wn. App. 2d
at 302-03. But it reversed the trial court's decision to dismiss on the ground that
former RCW 42.17A.005(4) encompassed initiatives not yet on the ballot in
noncharter cities. The Court of Appeals acknowledged that its interpretation of
former RCW 42.17A.005(4) disregarded the "literal interpretation" of the statute's
text. Id. at 304. That court explicitly stated that it "can and must ignore statutory
language." Id. at 305.
The Foundation petitioned for review, which we granted. State v. Evergreen
Freedom Found., 190 Wn.2d 1002(2018).
Analysis
I. Standard of Review
We review a trial court's grant of a CR 12(b)(6) motion to dismiss de novo.
FutureSelectPortfolio Mgmt., Inc. v. Fremont Grp. Holdings, Inc., 180 Wn.2d 954,
962, 331 P.3d 29(2014){giimg Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d
206 (2007)).
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
II. The Plain Language of Former RCW 42.17A.005(4)Is Ambiguous as
Applied to Ballot Propositions Not Yet on the Ballot in Noncharter
Cities
In interpreting a statute such as former RCW 42.17A.005(4),"[t]he court's
fundamental objective is to ascertain and carry out the Legislature's intent. . . ."
Dep't ofEcology v. Campbell & Gwinn,LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002).
The court discerns the legislature's intent by conducting a plain-meaning
analysis—^that is, by examining the statute's text and context. M at 11-12. "Of
course, if, after this inquiry, the statute remains susceptible to more than one
reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids
to construction, including legislative history." Id. at 12(citing Cockle v. Dep't of
Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001); Timberline Air Serv.,
Inc. V. BellHelicopter-Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920(1994)).
The language offormer RCW 42.17A.005(4) perfectly tracks the initiative
process for statewide measures and the initiative process for certain charter cities.
It states that a "ballot proposition" is "any initiative . . . proposed to be submitted
to the voters of the state or any . . . other voting constituency from and after the
time when the proposition has been initially filed with the appropriate election
officer of that constituency before its circulation for signatures." Former RCW
7
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCIoud, J., dissenting)
42.17A.005(4). A statewide measure or an initiative in a charter city following the
statewide process is "filed . . . before its circulation for signatures." Id.But the language of former RCW 42.17A.005(4) does not perfectly track the
initiative process in noncharter cities. An initiative in a noncharter city is not
"filed . . . before its circulation for signatures." Id. It is filed after its circulation
for signatures. Thus, as the majority recognizes, the text of former RCW
42.17A.005(4) is "at odds" and in "tension" with the initiative process in
noncharter cities. Majority at 10.
III. The Majority Impermissibly Relies on Legislative History To
Interpret Former RCW 42.17A.005(4)'s Plain Meaning
A. The Majority Relies on Former RCW 42.17A.005(4)'s
Underlying History To Interpret the Statute
The majority resolves that tension by relying on the statute's underlying
history. It compares the definition of"ballot proposition" as enacted by the voters
in 1972 with the definition of"ballot proposition" as amended by the legislature in
1975."^ The 1975 amendment made the following changes:
The legislature amended the definition of"ballot proposition" again in 2005 and
2010. But those amendments made technical, nonsubstantive changes only. Laws of
2005, ch. 445, § 6; LAWS OF 2010, ch. 204, § 101.
8
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
"Ballot proposition" means any "measure" as defined by
[RCW 29A.04.091], or any initiative, recall, or referendum
proposition proposed to be submitted to the voters of((any specific))
the state or anv municipal corporation, political subdivision or other
voting constituency ((which)) from and after the time when such
proposition has been initiallv filed with the appropriate election
officer ofthat constituency fbeforel its circulation for signatures.
Laws of 1975,1st Ex. Sess., ch. 294, § 2(2).
The State argues—and the majority accepts—^that because the 1972
"'definition already incorporated propositions as soon as they were filed and
[because the 1972 definition] already incorporated signature gathering for state
initiatives ... there was no need to add the phrase "[before] its circulation for
signatures" unless the legislature intended to clarify that the definition also covers
the signature-gathering period for local propositions.'" Majority at 10-11 (quoting
State of Washington's Suppl. Br. at 9). I agree.
B. Underlying History Is Legislative History, Not Context
I disagree, however, with the majority that that conclusion is plain. The
majority characterizes the changes that the legislature makes to a statute from one
session to the next as part ofthe statute's context. That information is not the sort
of context that this court had in mind, however, when it incorporated context into
our plain-meaning analysis in Campbell & Gwinn.
9
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCIoud, J., dissenting)
In Campbell & Gwinn, we were concerned about a line of a cases that—in
the name of plain meaning—had employed a method of interpretation that
effectively isolated statutory text from its surrounding scheme. 146 Wn.2d at 9;
see also Habitat Watch v. Skagit County, 155 Wn.2d 397, 417, 120 P.3d 56(2005)
(Chambers, J., concurring)("[W]e . . . often interpreted the plain meaning ofthe
statute section by section, without appropriate consideration for the legislature's
overall plan contained within the four comers of the act."). We disavowed that
line of cases and held that text's meaning must be derived from its words as well as
its context. Campbell & Gwinn, 146 Wn.2d at 11-12. Instead of scmtinizing a
particular term in a vacuum, a court must consider "all that the Legislature has said
in the statute and related statutes." Id. at 11.
The majority goes beyond that, however. It relies on historical information
that is not even part of the FCPA as it existed in 2014 when the Foundation
provided the free legal representation at issue here. Hence, no reader would have
consulted it to figure out whether expenditures were reportable in this context.
Instead, an initiative proponent in 2014 would have read former
ROW 42.17A.005(4) and found it ambiguous—even in context with the rest of the
FCPA—with respect to initiatives not yet on the ballot in noncharter cities. A
person could not be faulted for reading the latter portion of the statute that begins
10
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCIoud, J., dissenting)
with "from and after the time [of filing]" and ends with "before its circulation for
signatures" as modifying and limiting the text "any municipal corporation, political
subdivision, or other voting constituency." In fact, that is arguably the more
grammatical reading. The statute's unambiguous application to statewide
measures and initiatives in certain charter cities—places like Seattle and Tacoma—
only reinforces its ambiguity as to initiatives not yet on the ballot in noncharter
cities. That is so because the statute still has a purpose, even if one concludes that
it does not apply to initiatives not yet on the ballot in noncharter cities. Indeed, the
legislature might reasonably have intended the statute to apply in the pre-ballot
stage only at the statewide level and in the big cities where the political stakes,
moneyed interests, and potential for mischief might be considered greatest. A
plausible reading is that the statute does not apply to noncharter cities like Sequim,
Shelton, and Chelan. The liberal construction mandate of RCW 42.17.001(11)
would not alter that reading.
Thus, the majority's interpretation of the "plain meaning" of former
RCW 42.17A.005(4) is really based on a comparison with a prior, historical,
version ofthe statute—^the 1972 version that the 1975 legislature amended. But
while the legislative history can help courts resolve ambiguity in a statute, it cannot
11
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
make ambiguous language any less ambiguous to the reader. As applied to the
circumstances of this case, former RCW 42.17A.005(4) is ambiguous.^
IV. Controlling Rules of Constitutional Law Bar This Court from
Enforcing an Ambiguous Statute That Implicates Free Speech Rights
Under controlling decisions of this court and of the United States Supreme
Court, an ambiguity is fatal to a statute implicating constitutional rights. "Under
the Fourteenth Amendment, a statute may be void for vagueness 'if it is framed in
terms so vague that persons of common intelligence must necessarily guess at its
meaning and differ as to its application.'" Voters Educ. Comm., 161 Wn.2d at 484(2007)(quoting O'Day v. King County, 109 Wn.2d 796, 810, 749 P.2d 142(1988)); U.S. Const, amend. XIV. That standard is particularly strict when, as in
this case, the First Amendment right to free speech is implicated. Id. at 485
("[T]he Supreme Court has 'repeatedly emphasized that where First Amendment
freedoms are at stake a greater degree of specificity and clarity of purpose is
essential.'"(quoting O'Day, 109 Wn.2d at 810)); Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 366, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010)(treating
disclosure requirements as burdens on the First Amendment). "Because First
Amendment freedoms need breathing space to survive, government may regulate
^ RCW 42.17A.005 has been amended 20 times since voters enacted it in 1972.
12
State V. Evergreen Freedom Found., F\o. 95281-7
(Gordon McCioud, J., dissenting)
in the area only with narrow specificity." Nat'I Ass'nfor Advancement ofColored
People V. Button, 371 U.S. 415, 433, 83 S. Ct. 328,9 L. Ed. 2d 405 (1963)(citing
Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)).
"Ifthe line drawn ... is an ambiguous one,[the court] will not presume" that the
statute is constitutional. Id. at 432. Rather, an ambiguous statute bearing on such
an important right must not be given effect. Id.The majority states that the Foundation has the burden of proving that
former RCW 42.17A.005(4) is unconstitutionally vague. Majority at 13, 15. The
Court of Appeals took the same position in the unpublished portion of its opinion.
Evergreen Freedom Found., No. 50224-1-II, slip op.(unpublished portion) at 23,
http://www.courts.wa.gOv/opinions/pdf/D2%2050224-l-
II%20Published%200pinion.pdf. Like the Court of Appeals, the majority cites
Voters Education Committee in support of its position. But Voters Education
Committee says just the opposite. 161 Wn.2d at 481-82. The court in that case did
recognize that a statute is ordinarily presumed constitutional. But it also noted that
that presumption is not extended to statutes regulating speech. Id. at 482. That
case, like this case, involved a constitutional vagueness challenge to the TCPA, and
because the FCPA regulates speech, we placed the burden of demonstrating the
13
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
statute's clarity on the State. Id. Thus, to the extent that a burden exists in this
case, Voters Education Committee indicates that the State must bear it.
Conclusion
Because former RCW 42.17A.005(4) is ambiguous as applied to the
circumstances of this case, the statute cannot be given effect in these
circumstances. It is unconstitutionally vague as applied.^
I respectfully dissent.
® Recognizing that former RCW 42.17A.005(4) is unconstitutionally vague as
applied to the circumstances of this case does not conflict with the holdings of our
previous cases addressing the FCPA. See Utter, 182 Wn.2d 398; Voters Educ. Comm.,
161 Wn.2d 470. Nor does it conflict with the Ninth Circuit's holdings in Brumsickle, 624
F.3d 990. The questions in those cases, as well as their underlying facts, were all very
different than the ones before the court today. The circumstances of this ease—initiatives
not yet on the ballot in noncharter cities—stand on their own, and the challenge—to
former RCW 42.17A.005(4) in the aforementioned circumstances—is narrow.
14
State V. Evergreen Freedom Found., No. 95281-7
(Gordon McCloud, J., dissenting)
15