State Of Washington v. Evergreen Freedom Foundation

Filed
Washington State
Court of Appeals
Division Two
November 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50224-1-II
Appellant,
v. PART PUBLISHED OPINION
EVERGREEN FREEDOM FOUNDATION,
d/b/a FREEDOM FOUNDATION,
Respondent.
MAXA, J. – The State of Washington appeals the CR 12(b)(6) dismissal of its regulatory
enforcement action against the Evergreen Freedom Foundation (the Foundation). The State filed
suit after learning from a citizen complaint that the Foundation had provided pro bono legal
services in support of local initiatives in Sequim, Chelan, and Shelton without reporting the value
of those services to the Public Disclosure Commission (PDC).
RCW 42.17A.255(2) requires a person to report to the PDC certain “independent
expenditures,” defined in RCW 42.17A.255(1) to include any expenditure made in support of a
“ballot proposition.” RCW 42.17A.005(4) defines “ballot proposition” to include any initiative
proposed to be submitted to any state or local 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.”
No. 50224-1-II
The language of RCW 42.17A.005(4) tracks the procedure for statewide initiatives, in
which a proposition must be filed with election officials before any signatures are solicited.
However, in many local jurisdictions – including in Sequim, Chelan, and Shelton – the initiative
procedure requires that the appropriate number of signatures be obtained before a proposition is
filed with election officials.
Here, the Foundation’s pro bono legal services were provided after the Sequim, Chelan,
and Shelton initiatives had been filed with local election officials but also after the initiatives had
been circulated for signatures. The State argues that these initiatives were “ballot propositions”
under the RCW 42.17A.005(4) definition. The Foundation argues, and the trial court ruled, that
the initiatives were not “ballot propositions” when the legal services were provided because the
initiatives already had been circulated for signatures. Under the Foundation’s argument and the
trial court’s ruling, a local initiative filed in a jurisdiction where signatures must be obtained
before filing could never constitute a “ballot proposition.”
We hold that (1) under the only reasonable interpretation of RCW 42.17A.005(4), the
Sequim, Chelan, and Shelton initiatives qualified as “ballot propositions” because the
Foundation provided services after the initiatives had been filed with the local election officials,
regardless of the additional qualification that the proposition had to be filed before its circulation
for signatures; and (2) the disclosure requirement for independent expenditures under RCW
42.17A.255(2) does not violate the Foundation’s First Amendment right to free speech. In the
unpublished portion of this opinion, we reject the Foundation’s additional arguments.
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Accordingly, we reverse the trial court’s dismissal of the State’s regulatory enforcement
action regarding the Sequim, Chelan, and Shelton initiatives, and we remand for further
proceedings.
FACTS
Proposition Proposals
In 2014, groups of citizens in Sequim, Chelan, and Shelton prepared initiatives
concerning collective bargaining between municipalities and the bargaining representatives of
their employees, circulated the initiatives, and obtained signatures in their communities. The
proponents then submitted the initiatives and signatures to all three cities. The Sequim city
council failed to take any action. The Chelan city council directed its city attorney to file an
action to determine the initiative’s validity. The Shelton city commission declared the initiatives
invalid and took no further action.
In response, the proponents of each initiative filed a lawsuit against their respective cities.
The lawsuits requested that the initiatives be placed on the ballot to be voted on by city residents.
In each case, the proponents were represented by attorney staff members of the Foundation.
Apparently, attorneys representing various labor unions opposed each lawsuit. All three lawsuits
were dismissed and none were appealed.
The State’s Lawsuit
In October 2015, the State filed a complaint against the Foundation. The complaint
alleged that RCW 42.17A.255 required the Foundation to report to the PDC the legal services
provided by its staff in support of the initiatives. The State sought the imposition of a civil
penalty as well as temporary and permanent injunctive relief.
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The Foundation moved to dismiss under CR 12(b)(6) for failure to state a claim. The
trial court granted the Foundation’s motion and dismissed the State’s complaint. The court
reasoned that the applicable statutes were ambiguous and vague as to whether the Foundation
was obligated to report its legal services.
The State appeals the trial court’s dismissal order.
ANALYSIS
A. STANDARD OF REVIEW
The Foundation filed its motion to dismiss the State’s complaint under CR 12(b)(6),
which provides that a complaint may be dismissed if it fails to state a claim upon which relief
can be granted. We review a trial court’s CR 12(b)(6) order dismissing a claim de novo. J.S. v.
Vill. Voice Media Holdings, LLC, 184 Wash. 2d 95, 100, 359 P.3d 714 (2015). We accept as true
all facts alleged in the plaintiff’s complaint and all reasonable inferences from those facts. Id.
Dismissal under CR 12(b)(6) is appropriate if the plaintiff cannot allege any set of facts that
would justify recovery. Id.
B. STATUTORY BACKGROUND
1. Fair Campaign Practices Act Reporting Requirements
In 1972, Washington citizens passed Initiative 276, which established the PDC and
formed the basis of Washington’s campaign finance laws. Voters Educ. Comm. v. Pub.
Disclosure Comm’n, 161 Wash. 2d 470, 479, 166 P.3d 1174 (2007). Initiative 276 is codified in
portions of Chapter 42.17A RCW, which is known as the Fair Campaign Practices Act (FCPA).
RCW 42.17A.001 sets forth the declaration of policy of the FCPA. The public policy of
the state includes:
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(1) That political campaign and lobbying contributions and expenditures be fully
disclosed to the public and that secrecy is to be avoided.
....
(5) That public confidence in government at all levels is essential and must be
promoted by all possible means.
....
(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.
(11) That, mindful of the right of individuals to privacy and of the desirability of
the efficient administration of government, full access to information concerning
the conduct of government on every level must be assured as a fundamental and
necessary precondition to the sound governance of a free society.
RCW 42.17A.001 (emphasis added). In addition, RCW 42.17A.001 states that “[t]he provisions
of this chapter shall be liberally construed to promote complete disclosure of all information
respecting the financing of political campaigns and lobbying.”
The FCPA requires candidates and political committees to report to the PDC all
contributions received and expenditures made. RCW 42.17A.235(1). A “political committee”
includes any organization receiving donations or making expenditures in support of or in
opposition to a ballot proposition. RCW 42.17A.005(37).
A person who violates any provision in chapter 42.17A RCW may be subject to a civil
penalty of not more than $10,000 for each violation. RCW 42.17A.750(1)(c). In addition, a
court may compel the performance of any reporting requirement. RCW 42.17A.750(1)(h). The
attorney general and local prosecuting authorities “may bring civil actions in the name of the
state for any appropriate civil remedy, including but not limited to the special remedies provided
in RCW 42.17A.750.” RCW 42.17A.765(1). The PDC also may refer certain violations for
criminal prosecution. RCW 42.17A.750(2).
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2. Statewide and Local Initiative Process
The requirements for reporting expenditures under chapter 42.17A RCW involve the
processes for submitting ballot initiatives at the statewide and local levels. The initiative
processes at each level are established by state law and involve somewhat different requirements.
At the state level, chapter 29A.72 RCW governs the process for submitting initiatives to
the voters. A person who desires to submit a “proposed initiative measure” to the people must
file a copy of the proposed measure with the secretary of state. RCW 29A.72.010. After review
by the office of the code reviser, the proponent must file the proposed measure along with a
certificate of review with the secretary of state for assignment of a serial number. RCW
29A.72.020. The attorney general also formulates a ballot title for the proposed initiative. RCW
29A.72.060.
After the proposed initiative has been filed with the secretary of state and a ballot title has
been prepared, the proponent can prepare petitions for signature. RCW 29A.72.100, .120. The
proponent must obtain a certain number of signatures from legal voters, after which the petitions
are “submitted to the secretary of state for filing.” RCW 29A.72.150. The secretary of state then
verifies the signatures. RCW 29A.72.230. If the petition is sufficient, the secretary of state
places the proposed initiative on the ballot. RCW 29A.72.250.
At the local level, RCW 35.17.260 allows ordinances to be initiated by petition of a city’s
registered voters filed with the city commission. But the initiative must receive a certain number
of signatures from registered voters before being filed. RCW 35.17.260. The city clerk
ascertains whether the petition is signed by a sufficient number of registered voters. RCW
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35.17.280. The commission must decide whether to pass the proposed ordinance or submit the
proposed ordinance to a vote of the people. RCW 35.17.260(1)-(2).
Chapter 35.17 RCW applies to cities incorporated under a commission form of
government. See RCW 35.17.010. Although Sequim, Chelan, and Shelton are noncharter “code
cities” subject to title 35A RCW,1 RCW 35A.11.100 provides that, with a few exceptions, the
initiative process set forth in chapter 35.17 RCW also applies to code cities.2
Under the statutes discussed above, the procedure for submitting statewide and local
proposed initiatives is similar, but the first two preliminary steps are reversed. For a statewide
initiative, the proponent must file the proposed measure and then circulate the measure for
signatures. For a local initiative, the proponent must circulate the proposed measure for
signatures and then file the measure.
C. REPORTING OF INDEPENDENT EXPENDITURES
The State argues that the trial court erred in dismissing its complaint for failure to state a
claim because the Sequim, Chelan, and Shelton proposed initiatives qualified as “ballot
propositions” under RCW 42.17A.005(4), and therefore the Foundation was required to report to
the PDC its independent expenditures in support of the initiatives. We agree and hold that the
1
Sequim Municipal Code 1.16.010; Chelan Municipal Code 1.08.010; Shelton Municipal Code
(SMC) 1.24.010. Shelton also operates under a commission form of government. SMC
1.24.020.
2
First class cities that have adopted a charter may elect to follow a different process as provided
in the charter. RCW 35.22.200. For example, the initiative process in Seattle mirrors the
statewide requirement and requires an initial filing with the city clerk before signatures are
collected. See SEATTLE CITY CHARTER art. IV, § 1(B); Seattle Municipal Code 2.08.010.
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No. 50224-1-II
local initiatives qualified as “ballot propositions” once they were filed with the appropriate
election officials.
1. Statutory Interpretation Principles
Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,
179 Wash. 2d 756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation is to
determine and give effect to the legislature’s intent. Id. at 762. To determine legislative intent,
we first look to the plain language of the statute. Id. We consider the language of the provision
in question, the context of the statute in which the provision is found, and related statutes. Ass’n
of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 350, 340
P.3d 849 (2015).
If the statute defines a term, we must apply the definition provided. Nelson v. Duvall,
197 Wash. App. 441, 452, 387 P.3d 1158 (2017). To discern the plain meaning of undefined
statutory language, we give words their usual and ordinary meaning and interpret them in the
context of the statute in which they appear. AllianceOne Receivables Mgmt., Inc. v. Lewis, 180
Wash. 2d 389, 395, 325 P.3d 904 (2014). And “[r]elated statutory provisions must be harmonized
to effectuate a consistent statutory scheme that maintains the integrity of the respective statute.”
Koenig v. City of Des Moines, 158 Wash. 2d 173, 184, 142 P.3d 162 (2006).
If a statute is unambiguous, we apply the statute’s plain meaning as an expression of
legislative intent without considering other sources of such intent. Jametsky, 179 Wash. 2d at 762.
If the language of the statute is susceptible to more than one reasonable interpretation, the statute
is ambiguous. Id. We resolve ambiguity by considering other indications of legislative intent,
including principles of statutory construction, legislative history, and relevant case law. Id.
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We generally assume that the legislature meant precisely what it said and intended to
apply the statute as it was written. HomeStreet, Inc. v. Dep’t of Revenue, 166 Wash. 2d 444, 452,
210 P.3d 297 (2009). When interpreting a statute, each word should be given meaning. Id. And
when possible, statutes should be construed so that no clause, sentence, or word is made
superfluous, void, or insignificant. Id. However, in special cases we can ignore statutory
language that appears to be surplusage when necessary for a proper understanding of the
provision. Wash. Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 859, 774 P.2d 1199,
779 P.2d 697 (1989); see also Am. Disc. Corp. v. Shepherd, 160 Wash. 2d 93, 103, 156 P.3d 858
(2007).
In addition, when construing two statutes, we assume that the legislature did not intend to
create an inconsistency. Filo Foods, LLC v. City of SeaTac, 183 Wash. 2d 770, 793, 357 P.3d 1040
(2015). Whenever possible, we read statutes together to create a harmonious statutory scheme
that maintains each statute’s integrity. Id. at 792.
Finally, we can avoid a literal reading of a statute if it leads to strained, unlikely, or
absurd consequences. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wash. 2d 421, 443,
395 P.3d 1031 (2017). “We may resist a plain meaning interpretation that would lead to absurd
results.” Univ. of Wash. v. City of Seattle, 188 Wash. 2d 823, 834, 399 P.3d 519 (2017); see also
Chelan Basin Conservancy v. GBI Holding Co., 188 Wash. 2d 692, 705-08, 399 P.3d 493 (2017)
(avoiding an absurd interpretation that would render a statute practically meaningless).
2. Statutory Language
RCW 42.17A.255(2) requires any person who makes an “independent expenditure” to
file a report with the PDC if the expenditure by itself or added to all other such expenditures
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No. 50224-1-II
made during the same “election campaign” equals $100 or more. RCW 42.17A.255(1) defines
the term “independent expenditure” as “any expenditure that is made in support of or in
opposition to any candidate or ballot proposition and is not otherwise required to be reported”
under other provisions, with certain exceptions. (Emphasis added).
RCW 42.17A.005(4) defines “ballot proposition” to mean
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 circulation for signatures.
(Emphasis added.) RCW 29A.04.091 defines “measure” to include “any proposition or
question submitted to the voters.”
RCW 42.17A.255(2) also refers to an “election campaign.” RCW 42.17A.005(17)
defines “election campaign” to include “any campaign in support of, or in opposition to . . . , a
ballot proposition.”
3. Interpretation of RCW 42.17A.005(4)
a. Two Prongs of “Ballot Proposition” Definition
Under RCW 42.17A.005(4), there are two separate prongs of the definition of “ballot
proposition.” First, a ballot proposition is a “measure,” RCW 42.17A.005(4), which under RCW
29A.04.091 is “any proposition or question submitted to the voters.” In other words, under this
prong an initiative becomes a “ballot proposition” only after it is actually placed on the ballot.
The parties agree that the first prong does not apply here because none of the initiatives at issue
were submitted to the voters.
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Second, a ballot proposition is a proposition that is “proposed to be submitted to the
voters” of any state or local voting constituency, but only “from and after the time when the
proposition [1] has been initially filed with the appropriate election officer of that constituency
[2] before its circulation for signatures.” RCW 42.17A.005(4). The question here is whether
this second prong applies to the Sequim, Chelan, and Shelton local initiatives.
b. Application to State Initiatives
For statewide initiatives, application of the second prong of the “ballot initiative”
definition is straightforward and unambiguous. A state initiative must be submitted to the
secretary of state both before signature collection can begin, RCW 29A.72.010, and again after
the required number of signatures are collected. RCW 29A.72.150. Because there are two
points at which “filing” must occur, the phrase “before its circulation for signatures” clarifies
when an initiative becomes a “ballot proposition” – from and after the first filing, which is the
one that occurs before circulation for signatures.
c. Application to Local Initiatives
For local initiatives, the second prong of the definition of “ballot initiative” is confusing.
Unlike for statewide initiatives, in many local jurisdictions signatures must be gathered before
any filing occurs. RCW 35.17.260. Therefore, for those local initiatives there can be no period
that is both after filing but before circulation for signatures.
The Foundation argues that under the plain language of RCW 42.17A.005(4), the phrase
“before circulation for signatures” means that the second prong of the “ballot initiative”
definition can never apply to local initiatives in those jurisdictions – including in Sequim,
Chelan, and Shelton – where obtaining signatures is required before a proposition can be filed.
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Therefore, the Foundation asserts that only the first prong of the definition could possibly apply
to the local initiatives here, and the first prong clearly is inapplicable.
The State argues that the phrase “before its circulation for signatures” in RCW
42.17A.005(4) applies only to statewide initiatives and does not limit the second prong of the
definition for local initiatives where obtaining signatures is required before a proposition can be
filed. According to the State, the second prong at least applies to a proposition that “has been
initially filed with the appropriate election officer.” RCW 42.17A.005(4). Otherwise, the
second prong’s express application to local jurisdictions would be meaningless.3
d. Analysis
On initial review, the second prong of RCW 42.17A.005(4) is ambiguous. However, we
conclude that the only reasonable interpretation is the State’s position that a local initiative
becomes a “ballot proposition” once it is filed with the appropriate election official.
As noted above, applying the phrase “before its circulation for signatures” in RCW
42.17A.005(4) literally would mean that the second prong of the definition of “ballot
proposition” could never apply to initiatives in many local jurisdictions. But that result is
inconsistent with other language of RCW 42.17A.005(4), which expressly applies the second
3
The State also proposes an interpretation under which the second prong would apply to the
signature-gathering phase of a local initiative, even before the initiative has been filed with the
appropriate election official. Under this interpretation, the second prong would apply completely
different requirements for statewide initiatives (beginning after filing) and local initiatives
(beginning before circulation for signatures). However, as the State concedes, we need not
address this interpretation because here the local initiatives had been filed when the Foundation
provided legal services.
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No. 50224-1-II
prong to an initiative submitted not just to state voters, but also to the voters of “any municipal
corporation, political subdivision, or other voting constituency.” (Emphasis added.)
Further, the legislature amended RCW 42.17A.005(4) in 1975 to clarify that the second
prong of the definition of “ballot proposition” applied to all jurisdictions, not just to statewide
initiatives, and at the same time added the phrase “before its circulation for signatures.” The
language of Initiative 276 and the original language of RCW 42.17A.005(4) stated that the
second prong applied to an initiative submitted to “any specific constituency which has been
filed with the appropriate election officer of that constituency.” LAWS OF 1973, ch. 1, § 2(2).
The 1975 amendment changed the language as follows:
“Ballot proposition” means any “measure” as defined by RCW 29.01.110, or any
initiative, recall, or referendum proposition proposed to be submitted to the voters
of ((any specific)) the state or any municipal corporation, political subdivision or
other voting constituency ((which)) from and after the time when such proposition
has been initially filed with the appropriate election officer of that constituency
prior to its circulation for signatures.
LAWS OF 1975, 1st Ex. Sess., ch. 294, § 2(2).4
We avoid a literal interpretation of a statute that would lead to unlikely or absurd results.
Columbia Riverkeeper, 188 Wash. 2d at 443. The Foundation’s interpretation of RCW
42.17A.005(4) would lead to an absurd result. It would make no sense for the legislature to
expressly extend the second prong to all local initiatives while at the same time adopting a
requirement that precluded the application of the second prong to local initiatives where
signatures must be collected before filing.
4
The phrasing “prior to its circulation” was later changed to “before its circulation.” LAWS OF
2010, ch. 204, § 101(4).
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No. 50224-1-II
The Foundation argues that we cannot adopt an interpretation of RCW 42.17A.005(4)
that ignores the phrase “before its circulation for signatures” because we must give effect to all
the statutory language. In general, we must adopt an interpretation of a statute that does not
render certain language superfluous. HomeStreet, 166 Wash. 2d at 452. But this principle does not
require adoption of the Foundation’s position.
First, the Foundation fails to acknowledge that its interpretation ignores the part of RCW
42.17A.005(4) stating that the second prong applies to an initiative submitted to the voters of
“any municipal corporation, political subdivision, or other voting constituency.” The
Foundation’s position – that the second prong can never apply to most local initiatives – would
render this language completely superfluous. But under the State’s interpretation, the phrase
“before its circulation for signatures” applies to and provides clarification for statewide
initiatives, even though it does not apply to local initiatives.
Second, we can and must ignore statutory language when necessary for a proper
understanding of the provision. Am. Disc., 160 Wash. 2d at 103. Here, the only way we can apply
the second prong of the definition of “ballot proposition” to all local initiatives – which the
legislature clearly intended – is if we disregard the phrase “before its circulation for signatures”
in the context of local initiatives where signatures must be obtained before filing.
Third, we must be mindful of the directive in RCW 42.17A.001 that the provision of the
FCPA “be liberally construed to promote complete disclosure of all information respecting the
financing of political campaigns.” And relevant here, RCW 42.17A.001(5) states that “public
confidence in government at all levels is essential and must be promoted by all possible means.”
(Emphasis added.) As the State points out, adopting the Foundation’s position would create a
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large loophole in the FCPA’s reporting requirements. The public would be precluded from
receiving information regarding the financing of local initiatives at the most critical time – when
signatures in support of the initiatives are being collected. On the other hand, the State’s position
is consistent with the primary purpose of the FCPA – to fully disclose to the public political
campaign contributions and expenditures. RCW 42.17A.001(1).
We hold that the only reasonable interpretation of RCW 42.17A.005(4) is that the second
prong of the definition of “ballot proposition” applies after a local initiative has been filed with
the appropriate election official even though signatures already have been collected in support of
that initiative. The phrase “before its circulation for signatures” applies only to statewide
initiatives or to local jurisdictions that follow the statewide procedure.
4. Application of RCW 42.17A.005(4)
Here, the State’s complaint alleged that the Foundation provided pro bono legal support
for each of the Sequim, Chelan, and Shelton initiatives after those initiatives had been filed with
the respective cities. The State further alleged that the Foundation failed to report that support as
an independent expenditure in support of a ballot proposition. For purposes of CR 12(b)(6), we
must assume that these allegations are true. J.S., 184 Wash. 2d at 100.
Based on our interpretation above, each initiative qualified as a “ballot proposition”
under RCW 42.17A.005(4) once it was filed with the cities. As a result, under RCW
42.17A.255(2) the Foundation was required to file a report disclosing any independent
expenditure that, alone or in combination with all other independent expenditures, equaled $100
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or more.5 If the State demonstrates that the Foundation violated RCW 42.17A.255(2), the
Foundation will be subject to a civil penalty under RCW 42.17A.750.
The Foundation argues that any reporting obligations in this case could not be triggered
because RCW 42.17A.255(2) requires that an independent expenditure was made “during [an]
election campaign.” The Foundation claims that there was never an election campaign in this
case because the initiatives were never submitted to the voters. But an “election campaign” is
defined in RCW 42.17A.005(17) to include “any campaign in support of, or in opposition to, a
ballot proposition.” The Foundation’s pro bono legal services were rendered in support of the
local initiatives – to assist their placement on the ballot. Therefore, because we conclude that the
initiatives at issue here qualified as “ballot propositions,” the Foundation’s support occurred
during an “election campaign.”
By alleging that the Foundation failed to report its legal support of the Sequim, Chelan,
and Shelton initiatives, the State stated a claim upon which relief could be granted. Accordingly,
we hold that the trial court erred in dismissing the State’s claim under CR 12(b)(6).
D. FIRST AMENDMENT RIGHT TO FREE SPEECH
The Foundation argues that if we interpret RCW 42.17A.255 to require disclosure here,
the statute would impermissibly infringe on the Foundation’s right of free speech under the First
Amendment to the United States Constitution. We disagree.
5
The Foundation does not contest that its pro bono legal services constitute an “independent
expenditure,” as defined by RCW 42.17A.255(1).
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1. Legal Standard
Generally, a statute is presumed to be constitutional, and the party challenging its
constitutionality bears the burden of proving it to be unconstitutional beyond a reasonable doubt.
Voters Educ. Comm., 161 Wash. 2d at 481. However, in the First Amendment context the State
typically has the burden to justify a restriction on speech. Id. at 482.
The applicable standard of review differs depending on whether a law limits speech
outright or merely imposes disclosure requirements on the speaker. Id. Statutes that regulate
speech based on its content must survive strict scrutiny. Rickert v. Pub. Disclosure Comm’n, 161
Wash. 2d 843, 848, 168 P.3d 826 (2007). By contrast, disclosure requirements, although
potentially a burden on the ability to speak, impose no ceiling on campaign-related activity and
do not prevent speech. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366, 130 S. Ct.
876, 175 L. Ed. 2d 753 (2010).
Therefore, laws that impose disclosure requirements must survive the less stringent
“ ‘exacting scrutiny’ ” test, which requires disclosure requirements to have a “ ‘relevant
correlation’ or ‘substantial relation’ ” to a governmental interest.6 Voters Educ. Comm., 161
Wash. 2d at 482 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976));
see also Citizens United, 558 U.S. at 366. We must determine whether (1) the disclosure
requirements promote a sufficiently important government interest and (2) there is a substantial
6
The Foundation argues that strict scrutiny review applies. But as the Ninth Circuit recently
explained in detail, exacting scrutiny is the appropriate standard of review for disclosure
requirements. See Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1004-05 (9th Cir.
2010).
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No. 50224-1-II
relation between the disclosure requirements and that interest. See Voters Educ. Comm., 161
Wash. 2d at 482; Citizens United, 558 U.S. at 366.
2. Governmental Interest
Disclosure requirements can further multiple governmental interests, including providing
information to the public, deterring corruption and the appearance of corruption, and gathering
the data necessary to enforce substantive election restrictions. McConnell v. Fed. Election
Comm’n, 540 U.S. 93, 196, 124 S. Ct. 619, 690, 157 L. Ed. 2d 491 (2003), overruled on other
grounds by Citizens United, 558 U.S. 310; see also Voters Educ. Comm., 161 Wash. 2d at 482. On
that basis, courts that have addressed disclosure requirements and have consistently determined
that they sufficiently further a governmental interest. And courts have done so when specifically
addressing chapter 42.17A RCW.
For example, the Ninth Circuit in Human Life of Washington Inc. v. Brumsickle
addressed the same “independent expenditure” disclosure requirement at issue here. 624 F.3d
990, 998 (9th Cir. 2010). The court stated that disclosure laws help shed light on contributors to
and participants in public debate, providing voters with the facts necessary to evaluate the
messages competing for their attention. Id. at 1005. In the context of voter-decided ballot
measures, the voters act as legislators, making it important that they know who is lobbying for
their vote. Id. at 1007. Therefore, the court concluded that 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.” Id. at 1008.
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Washington courts have reached the same conclusion. In Voters Education Committee,
the Supreme Court noted as important the governmental interests in providing the electorate with
information and deterring corruption. 161 Wash. 2d at 482. The court acknowledged that the right
to free speech held by organizations who engage in political speech includes a “fundamental
counterpart” that is the public’s right to receive information. Id. at 483 (quotation marks and
citation omitted). The court explained that constitutional safeguards that protect the organization
also apply to ensure that the public receives information, thereby encouraging uninhibited,
robust, and wide-open political speech. Id.
Similarly, Division One of this court has determined that the state has a substantial
interest in the disclosure of information to promote the integrity of its elections and prevent
concealment that could mislead voters. State ex rel. Pub. Disclosure Comm’n v. Permanent
Offense, 136 Wash. App. 277, 284, 150 P.3d 568 (2006).
The same governmental interests in those cases apply here. As the legislature expressly
stated, chapter 42.17A adopted the policy of fully disclosing contributions and expenditures for
political campaigns and lobbying. RCW 42.17A.001(1). The goal of disclosure was intended to
improve public confidence in the fairness of elections and government processes and to protect
the public interest. See generally RCW 42.17A.001(1)-(11). In addition to those express goals,
the governmental interests in educating voters and preventing concealment noted by other courts
apply with equal strength here.
3. Substantial Relationship
Under the second exacting scrutiny prong, our Supreme Court has stated that in most
cases, disclosure requirements “ ‘appear to be the least restrictive means of curbing the evils of
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campaign ignorance and corruption.’ ” Voters Educ. Comm., 161 Wash. 2d at 483 (quoting
Buckley, 424 U.S. at 68). The United States Supreme Court in Citizens United emphasized that
“disclosure is a less restrictive alternative to more comprehensive regulations of speech.” 558
U.S. at 369. Disclosure requirements operate by requiring organizations to reveal their identity
to allow the public to identify the source of funding that influences elections without actually
limiting that funding. Voters Educ. Comm., 161 Wash. 2d at 483.
The reports required under RCW 42.17A.255 are substantially related to the
government’s interest in disclosure. The reports themselves include only the name and address
of the person who provided an independent expenditure, the name and address of the person who
received the independent expenditure, the amount and date of the independent expenditure, its
purpose, and the sum of all independent expenditures during the campaign. RCW
42.17A.255(5). This information is consistent with the government’s interests in providing the
public with information, preventing corruption, and collecting data. In addition, by emphasizing
disclosure, the reporting requirement imposes significantly less of a burden than spending
limitations. Permanent Offense, 136 Wash. App. at 285. As a result, the requirement’s
relationship to the relevant governmental interests is sufficiently close to be valid.
The Foundation argues that the disclosure requirement is invalid because disclosure in
this case violates the attorney-client privilege. For support, the Foundation cites RCW
5.60.060(2)(a), which privileges communication made by the client to an attorney or the
attorney’s advice given in the course of his or her professional employment. The privilege exists
to allow a client to freely communicate with an attorney without a fear of compulsory discovery.
Dietz v. Doe, 131 Wash. 2d 835, 842, 935 P.2d 611 (1997). Generally, the privilege does not
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No. 50224-1-II
protect the name of a client because that information is not a confidential communication. Id. at
846. A limited “legal advice” exception may privilege a client’s identity where disclosure of the
client’s name would implicate the client in criminal activity. Id.
But the Foundation has not shown that disclosure of pro bono legal services violates its
attorney-client privilege. The fact that the Foundation provided pro bono legal services is not
itself a confidential communication. Disclosing the value of those services also does not reveal
any confidential information. And the Foundation does not argue that the legal advice exception
applies.
The Foundation also argues that under Citizens United, disclosure and reporting
requirements are valid only if they are limited to speech that is functionally equivalent to express
political advocacy. But Citizens United holds the opposite. The Court noted that it had
previously limited restrictions on independent expenditures to express advocacy. Citizens
United, 558 U.S. at 368. It then expressly “reject[ed] Citizens United’s contention that the
disclosure requirements must be limited to speech that is the functional equivalent of express
advocacy.” Id. at 369.
The disclosure requirement in RCW 42.17A.255(2) satisfies the exacting scrutiny
standard and is not otherwise invalid as applied in this case. Accordingly, we hold that the
Foundation has not shown that the FCPA violates the First Amendment either facially or as
applied.
CONCLUSION
We reverse the trial court’s dismissal of the State’s regulatory enforcement action
regarding the Sequim, Chelan, and Shelton initiatives, and we remand for further proceedings.
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A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
ADDITIONAL ANALYSIS
In the unpublished portion of the opinion, we address the Foundation’s arguments that (1)
RCW 42.17A.255(2) is unenforceable because (a) the definition of “ballot proposition” is
unconstitutionally vague and (b) the disclosure requirement improperly infringes on the
judiciary’s authority to regulate the practice of law, and (2) the State’s complaint should be
dismissed because the State failed to join certain unions also involved with the local initiatives as
indispensable parties under CR 19.
A. VAGUENESS CHALLENGE
The Foundation argues that the statutes applicable here – the definition of “ballot
proposition” in RCW 42.17A.005(4) and the reporting requirement in RCW 42.17A.255 – are
unconstitutionally vague and therefore cannot be enforced. We disagree.
Under the Fourteenth Amendment to the United States Constitution, a statute may be
void for vagueness if it is framed in terms so vague that persons of common intelligence must
guess at its meaning and cannot agree on its application. Voters Educ. Comm., 161 Wash. 2d at
484. The doctrine has two goals: to provide fair notice as to what conduct is prohibited and to
protect against arbitrary enforcement. Postema v. Pollution Control Hr’gs Bd., 142 Wash. 2d 68,
114, 11 P.3d 726 (2000).
To determine whether a statute is sufficiently definite, we look to the provision in
question within the context of the enactment, giving language a sensible, meaningful, and
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No. 50224-1-II
practical interpretation. Am. Legion Post No. 149 v. Dep’t of Health, 164 Wash. 2d 570, 613, 192
P.3d 306 (2008). A statute is not invalid simply because it could have been drafted with greater
precision. Id. 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 Wash. 2d at 488.
Statutes are presumed to be constitutional. Id. at 481. The party asserting that a statute is
unconstitutionally vague must prove its vagueness beyond a reasonable doubt. Id. In the First
Amendment context, the asserting party may allege that a statute is either facially invalid or
invalid as applied. See Am. Legion Post No. 149, 164 Wash. 2d at 612. A facial challenge asserts
that the statute cannot be properly applied in any context. City of Spokane v. Douglass, 115
Wash. 2d 171, 182 n.7, 795 P.2d 693 (1990). In an as applied challenge, the statute must be
considered in light of the facts of the specific case before the court. Am. Legion Post No. 149,
164 Wash. 2d at 612.
Here, the Foundation argues that the definition of “ballot proposition” in RCW
42.17A.005(4) is impermissibly vague. The core of the Foundation’s argument appears to be
that the statute is inconsistent with the local initiative process, not that the statute itself or any of
its terms are too vague.
But as our interpretation above establishes, RCW 42.17A.005(4) presents a single, clearly
delineated definition for what constitutes a “ballot proposition.” As we explained, the
Foundation’s argument that the definition cannot apply to local jurisdictions is not supported by
the statute’s express language or its statement that it is to be liberally construed in favor of
disclosure. RCW 42.17A.001. The text also does not support the Foundation’s suggestion that
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No. 50224-1-II
the statute imposes a reporting requirement only “before its circulation for signatures,” which
when applied to local jurisdictions creates a nonexistent reporting period. As a result, RCW
42.17A.005(4) applies to a clearly defined period, beginning “from and after the proposition has
been initially filed.”
That language is not unconstitutionally vague as applied to this case. Whether the
Foundation reported its independent expenditures in support of the initiatives in Sequim, Chelan,
and Shelton after those initiatives were initially filed is clearly identifiable as a matter of fact.
Likewise, the language is not facially invalid because it establishes a clear course of conduct,
requiring persons to report their independent expenditures. Therefore, the Foundation has not
shown that there are no set of facts, including the ones here, in which the statute could not be
constitutionally applied. Douglass, 115 Wash. 2d at 182 n.7.
Accordingly, we hold that RCW 42.17A.005(4) and RCW 42.17A.255 are not void for
being unconstitutionally vague.
B. INFRINGEMENT ON SEPARATION OF POWERS
The Foundation argues that requiring disclosure of the provision of legal services
infringes on the judicial branch’s authority to regulate the practice of law. We disagree.
Authority to regulate the practice of law in Washington lies within the inherent power of
the Supreme Court. Chism v. Tri-State Constr., Inc., 193 Wash. App. 818, 838, 374 P.3d 193,
review denied, 186 Wash. 2d 1013 (2016). This regulatory authority includes the authority to
regulate admission to the practice of law, to oversee conduct of attorneys as officers of the
courts, and to control and supervise the practice of law as a general matter. Wash. State Bar
Ass’n v. State, 125 Wash. 2d 901, 908, 890 P.2d 1047 (1995). This power lies exclusively with the
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No. 50224-1-II
judiciary. Id. at 909. The other branches of government cannot impair the judiciary’s
functioning or encroach on its power to administer its own affairs. Id. at 908-09.
But the judiciary’s exclusive authority in overseeing the practice of law does not exempt
attorneys from application of other laws. See Short v. Demopolis, 103 Wash. 2d 52, 62-66, 691
P.2d 163 (1984); Porter Law Ctr., LLC v. Dep’t of Fin. Insts., 196 Wash. App. 1, 20, 385 P.3d 146
(2016). A law that applies to attorneys in their legal practice does not violate separation of
powers principles as long as it does not usurp the judiciary’s authority.
In Short, the plaintiffs were attorneys who sought to recover legal fees allegedly owed by
the defendant. 103 Wash. 2d at 53-54. In a counterclaim, the defendant alleged among other things
that the attorneys had violated the Consumer Protection Act (CPA). Id. at 54-55. The trial court
dismissed the defendant’s CPA claims, in part on the basis that regulation of the legal profession
through the CPA would unconstitutionally infringe on the judiciary’s authority to regulate the
practice of law. Id. at 55.
The Supreme Court reversed, holding that application of the CPA did not violate
separation of powers principles. Id. at 65-66. It stated that the judiciary’s power over the legal
profession included the exclusive authority to admit, enroll, discipline, and disbar attorneys. Id.
at 62. But this authority does not create an impenetrable barrier against the legislature. Id. at 63.
Instead, legislation is proper as long as it does not infringe on the court’s power over the practice
of law, specifically to admit, suspend, or disbar attorneys. Id. This authority was not encroached
on by the CPA, which addressed public concerns distinct from the judiciary’s role in overseeing
the practice of law. Id. at 64. The court concluded that the CPA could apply to the
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No. 50224-1-II
entrepreneurial aspects of legal practice, but not claims that an attorney had engaged in legal
malpractice or otherwise acted negligently in his role as an attorney. Id. at 65-66.
The court in Porter Law Center reached the same conclusion in the context of the
Mortgage Broker Practices Act (MBPA). 196 Wash. App. at 20. There, the Department of
Financial Institutions claimed that an Ohio attorney had provided mortgage modification services
to several Washington residents in violation of the MBPA. Id. at 5-7. The MBPA required
persons who engage in certain mortgage-related services to first obtain a license, but contained
an exemption for attorneys licensed in Washington. Id. at 14-15.
The defendant argued that the MBPA infringed on the Supreme Court’s authority to
regulate the practice of law. Id. at 20. The court disagreed, stating that “application of consumer
protection laws such as the MBPA to attorneys ‘does not trench upon the constitutional powers
of the court to regulate the practice of law.’ ” Id. (quoting Short, 103 Wn.2d at 65).
Under Short and Porter Law Center, laws may apply to attorneys acting in the practice of
law without violating separation of powers principles. The question is whether the law properly
regulates the entrepreneurial aspects of legal practice or improperly infringes on the judiciary’s
exclusive right to oversee legal practice in areas like admission, suspension, or disbarment of
attorneys.
Here, the disclosure requirements do not improperly regulate the practice of law. Their
purpose is to encourage transparency in political campaign and lobbying contributions and
expenditures. RCW 42.17A.001(1). To do this, they require persons, including attorneys, to
disclose their independent expenditures made in the support or opposition to ballot propositions.
RCW 42.17A.255(2). Following the distinction drawn by Short, these requirements regulate the
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No. 50224-1-II
entrepreneurial aspects of legal practice without imposing on the judiciary’s oversight of the
practice of law. 103 Wn.3d at 65-66.
Further, as a disclosure requirement instead of a substantive obligation, RCW
42.17A.255 does less to impose on the judiciary’s role than the laws at issue in Short and Porter
Law Center. Unlike with the CPA and MBPA, which establish limits on how attorneys are able
to practice law, the requirements at issue here do not restrict the Foundation’s legal practice.
Instead, requiring disclosure obligates the Foundation, like any other person who makes an
independent expenditure, to report its actions.
Accordingly, we hold that application of RCW 42.17A.255(2) to the Foundation does not
improperly violate separation of powers principles.
C. JOINDER UNDER CR 19
The Foundation argues that the State’s complaint should have been dismissed because the
State failed to join the unions that opposed the ballot initiatives. The Foundation claims that the
unions were indispensable parties under CR 19.7 We disagree.
CR 19 concerns the joinder of persons needed for a just adjudication. Under CR 19(a), a
person shall be joined in an action if
(1) in the person’s absence complete relief cannot be accorded among those already
parties, or (2) the person claims an interest relating to the subject of the action and
is so situated that the disposition of the action in the person’s absence may (A) as a
practical matter impair or impede the person’s ability to protect that interest or (B)
leave any of the persons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by reason of the person’s
claimed interest.
7
In the trial court, the Foundation moved to dismiss under CR 12(b)(7) for failure to join an
indispensable party. The trial court stated that it did not need to reach that issue, but that it
would have denied the Foundation’s motion because the State’s decision to bring a regulatory
claim was a matter of discretion that should not be interfered with.
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No. 50224-1-II
Under CR 19(b),
If a person joinable under (1) or (2) of section (a) hereof cannot be made a party,
the court shall determine whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed, the absent person being
thus regarded as indispensable.
The rule provides four factors for the court to consider in making that determination.
A court reviewing a claim under CR 19 applies a three-step process. First, under CR
19(a), the court identifies whether absent persons are “necessary” to a just adjudication.
Lundgren v. Upper Skagit Indian Tribe, 187 Wash. 2d 857, 868, 389 P.3d 569 (2017), petition for
cert. filed, No. 17-387 (U.S. Sept. 13, 2017). Second, if the person is necessary, the court
determines whether it is feasible to order joinder of the absentees. Id. at 868-69. Third, if
joinder is not feasible, the court must consider whether in equity and good conscience the action
should proceed without the absent persons. Id. at 869.
The burden of persuasion is on the party seeking dismissal. Auto. United Trades Org. v.
State, 175 Wash. 2d 214, 222, 285 P.3d 52 (2012). Dismissal for failure to properly join a party,
although allowed under CR 12(b)(7), is a drastic remedy. Lundgren, 187 Wash. 2d at 869.
Therefore, dismissal is appropriate only when the defect cannot be cured and the absent persons
will face significant prejudice should the case continue. Id.
Here, the Foundation asserts that the unions are necessary parties for two reasons.8 First,
the Foundation argues under CR 19(a)(1) that in the absence of the unions, the trial court could
8
The Foundation also suggests that it was prejudiced by the unions’ absence because the State is
seeking attorney fees and costs, which the Foundation and the unions could have split. But it
does not attempt to relate this argument to CR 19 or provide support showing that the cost of
defending litigation makes an absent person a necessary party. Accordingly, we do not address
this issue. RAP 10.3(a)(6); Linth v. Gay, 190 Wash. App. 331, 339 n.5, 360 P.3d 844 (2015),
review denied, 185 Wash. 2d 1012 (2016).
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No. 50224-1-II
not provide complete relief among persons who are already parties. The Foundation claims that
any judgment in this action will necessarily affect the status of the unions. But the Foundation
does not demonstrate how, in the unions’ absence, the trial court will be unable to resolve
whether the Foundation violated the RCW 42.17A.255(2) disclosure requirements. The unions’
involvement opposing the Foundation’s lawsuits is simply not relevant to the Foundation’s
obligation to report its independent expenditures. The unions are therefore not necessary parties
under CR 19(a)(1).
Second, the Foundation argues under CR 19(a)(2)(B) that the State’s decision to bring
this lawsuit but not a similar one against the unions creates inconsistent obligations because the
unions also did not comply with RCW 42.17A.255(2). But CR 19 does not address the risk that
similar actions taken by different parties could result in different outcomes. Rather, as the Ninth
Circuit explained regarding the federal rule,
“ ‘[i]nconsistent obligations’ are not . . . the same as inconsistent adjudications or
results. Inconsistent obligations occur when a party is unable to comply with one
court’s order without breaching another court’s order concerning the same incident.
Inconsistent adjudications or results, by contrast, occur when a defendant
successfully defends a claim in one forum, yet loses on another claim arising from
the same incident in another forum.”
Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California, 547 F.3d 962,
976 (9th Cir. 2008) (alterations in original) (quoting Delgado v. Plaza Las Americas, Inc., 139
F.3d 1, 3 (1st Cir. 1998)).9
9
Because Washington’s CR 19 is so similar to the federal rule, this court may look to federal
cases for guidance. Auto. United Trades Org., 175 Wash. 2d at 223.
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No. 50224-1-II
In addition, the Foundation’s argument is not relevant here because CR 19(a)(2)(B) asks
whether any person already a party to the lawsuit would be subject to inconsistent obligations.
The rule looks to whether the Foundation itself would be subject to inconsistent obligations, not
whether the obligations on the Foundation and the unions would be inconsistent.
The Foundation has not demonstrated that, in the unions’ absence, the trial court could
not afford complete relief under CR 19(a)(1) or that the Foundation would be subject to
inconsistent obligations under CR 19(a)(2)(B). Accordingly, we hold that the unions are not
necessary parties and that CR 19 does not require dismissal of the State’s lawsuit.
CONCLUSION
We reverse the trial court’s dismissal of the State’s regulatory enforcement action
regarding the Sequim, Chelan, and Shelton initiatives, and we remand for further proceedings.
MAXA, J.
We concur:
WORSWICK, J.
BJORGEN, C.J.
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