IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
MICHAEL SCHRECK, No. 85154-3-I
Appellant,
v. UNPUBLISHED OPINION SEATTLE OFFICE OF ECONOMIC DEVELOPMENT, SEATTLE RESTORED, and ANDREA PORTER,
Respondents.
BOWMAN, J. — Michael Schreck appeals the trial court’s CR 12(b)(6)
dismissal of his complaint alleging that the Seattle Office of Economic
Development’s (OED’s) program, “Seattle Restored,” is unconstitutional and
violates RCW 49.60.400 because it gives preference to applicants who are
Black, indigenous, or people of color (BIPOC). Because Schreck does not assert
in his complaint that he actually applied for the program or that the city denied his
application, we affirm.
FACTS
Seattle Restored is a program run by OED that helps artists and “pop-up
shops” rent vacant storefronts around Seattle. Schreck wanted to open a “food
pop-up” called “Batch” and sought assistance from the program. Schreck tried to
apply for the program but “was thwarted” by technical difficulties. He then tried to No. 85154-3-I/2
obtain technical support from OED, but “[n]othing could be done.” As a result,
Schreck did not submit an application.
In September 2022, Schreck sued the OED, Seattle Restored, and Seattle
Restored’s program director Andrea Porter (collectively City).1 In his complaint,
Schreck alleged that the program gave an improper preference to BIPOC
applicants over white applicants and to artists over restaurants, which violates
the equal protection and due process clauses of the United States Constitution
and RCW 49.60.400. He alleged that Seattle Restored’s website “claimed
preference would be given to BIPOC” individuals and that Porter “verified this via
phone conversation.” Schreck also alleged that during a telephone call, Porter
said she “ ‘just wanted to give the money to artists,’ ” and that Seattle Restored
awarded no grant to restaurants. He asked for “one million dollars in damages or
a halt to racial preference in [c]ity contracting and programs.”
The City moved to dismiss Schreck’s complaint under CR 12(b)(6).2 It
argued that because Schreck did not apply for the program, he lacked standing
and could not state a claim for which the court could grant relief. It also argued
that the issue was moot because the city was no longer funding grants. Schreck
did not respond.
1 Schreck also moved for an ex parte temporary restraining order (TRO), seeking to stop the city from awarding Seattle Restored grants. A King County Superior Court commissioner denied the TRO, concluding Schreck must give notice to the city unless he could show that providing notice would result in “immediate and irreparable harm.” 2 The City’s motion to dismiss is not in the record.
2 No. 85154-3-I/3
On February 24, 2023, the court held a hearing on the City’s motion. The
City rested on its brief, and Schreck argued that he should prevail on the merits
of his claim. The court reserved its ruling.
Three days later on February 27, the court issued an order granting the
City’s motion and dismissing Schreck’s complaint with prejudice.3 The court
explained that Schreck “never applied for the program, according to his
complaint,” and that “[h]e needed to actually apply to have standing in his claim
of discrimination.” Or, “[p]ut another way, for him to state a claim he needed to
allege some act that caused him damage, and that has to be more than simply
telling the City that the racial preference was wrong.”
Schreck appeals.
ANALYSIS
Schreck argues that the trial court erred by dismissing his complaint for
lack of standing.4 We disagree.
We review de novo an order dismissing a case for lack of standing under
CR 12(b)(6). Kanam v. Kmet, 21 Wn. App. 2d 902, 909, 508 P.3d 1071 (2022).
Dismissal under CR 12(b)(6) is proper where “ ‘it appears beyond doubt that the
plaintiff can prove no set of facts consistent with the complaint that would entitle
3 The court also concluded that his claims were moot. 4 Schreck also assigns error to the commissioner’s denial of his motion for an ex parte TRO, the conduct of the King County Superior Court Clerk’s Office, and the actions of a superior court bailiff. But he fails to support his assignments of error with meaningful legal citations or analysis, so we do not address those claims. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we consider argument in an opening brief waived if it is unsupported by reference to the record or citation to authority).
3 No. 85154-3-I/4
him or her to relief.’ ” Id. at 910 (quoting Larson v. Snohomish County, 20 Wn.
App. 2d 243, 263, 499 P.3d 957 (2021)). We take the plaintiff’s allegations in the
complaint as true and can consider hypothetical facts outside the record. Id. But
if a claim remains legally insufficient even under proffered hypothetical facts,
dismissal under CR 12(b)(6) is appropriate. Alim v. City of Seattle, 14 Wn. App.
2d 838, 851, 474 P.3d 589 (2020).
“ ‘Standing is a party’s right to make a legal claim or seek judicial
enforcement of a duty or a right.’ ” Kanam, 21 Wn. App. 2d at 908-095 (quoting
State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (2007)). “ ‘The kernel of the
standing doctrine is that one who is not adversely affected by a statute may not
question its validity.’ ” Alim, 14 Wn. App. 2d at 851-52 (quoting Walker v. Munro,
124 Wn.2d 402, 419, 879 P.2d 920 (1994)). We apply a two-part test to
determine whether a party has legal standing. Nelson v. Appleway Chevrolet,
Inc., 129 Wn. App. 927, 939, 121 P.3d 95 (2005), aff’d, 160 Wn.2d 173, 157 P.3d
847 (2007). First, we ask “whether the interest asserted is arguably within the
zone of interests protected by the statute or constitutional right at issue.” Id.
Second, we determine “whether the party seeking standing has suffered an injury
in fact, economic or otherwise.” Id. A financial loss amounts to an injury in fact.
City of Longview v. Wallin, 174 Wn. App. 763, 782, 301 P.3d 45 (2013). But a
plaintiff lacks standing if their injury is merely conjectural or hypothetical.
Trepanier v. City of Everett, 64 Wn. App. 380, 383, 824 P.2d 524 (1992).
5 Internal quotation marks omitted.
4 No. 85154-3-I/5
Schreck’s complaint alleges that “Seattle Restored is a [c]ity program from
the OED” and that the program “claimed preference would be given to BIPOC”
individuals, which Porter “verified . . . via phone conversation.” Schreck explains
that Porter told him that “she ‘just wanted to give the money to artists.’ ” And he
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
MICHAEL SCHRECK, No. 85154-3-I
Appellant,
v. UNPUBLISHED OPINION SEATTLE OFFICE OF ECONOMIC DEVELOPMENT, SEATTLE RESTORED, and ANDREA PORTER,
Respondents.
BOWMAN, J. — Michael Schreck appeals the trial court’s CR 12(b)(6)
dismissal of his complaint alleging that the Seattle Office of Economic
Development’s (OED’s) program, “Seattle Restored,” is unconstitutional and
violates RCW 49.60.400 because it gives preference to applicants who are
Black, indigenous, or people of color (BIPOC). Because Schreck does not assert
in his complaint that he actually applied for the program or that the city denied his
application, we affirm.
FACTS
Seattle Restored is a program run by OED that helps artists and “pop-up
shops” rent vacant storefronts around Seattle. Schreck wanted to open a “food
pop-up” called “Batch” and sought assistance from the program. Schreck tried to
apply for the program but “was thwarted” by technical difficulties. He then tried to No. 85154-3-I/2
obtain technical support from OED, but “[n]othing could be done.” As a result,
Schreck did not submit an application.
In September 2022, Schreck sued the OED, Seattle Restored, and Seattle
Restored’s program director Andrea Porter (collectively City).1 In his complaint,
Schreck alleged that the program gave an improper preference to BIPOC
applicants over white applicants and to artists over restaurants, which violates
the equal protection and due process clauses of the United States Constitution
and RCW 49.60.400. He alleged that Seattle Restored’s website “claimed
preference would be given to BIPOC” individuals and that Porter “verified this via
phone conversation.” Schreck also alleged that during a telephone call, Porter
said she “ ‘just wanted to give the money to artists,’ ” and that Seattle Restored
awarded no grant to restaurants. He asked for “one million dollars in damages or
a halt to racial preference in [c]ity contracting and programs.”
The City moved to dismiss Schreck’s complaint under CR 12(b)(6).2 It
argued that because Schreck did not apply for the program, he lacked standing
and could not state a claim for which the court could grant relief. It also argued
that the issue was moot because the city was no longer funding grants. Schreck
did not respond.
1 Schreck also moved for an ex parte temporary restraining order (TRO), seeking to stop the city from awarding Seattle Restored grants. A King County Superior Court commissioner denied the TRO, concluding Schreck must give notice to the city unless he could show that providing notice would result in “immediate and irreparable harm.” 2 The City’s motion to dismiss is not in the record.
2 No. 85154-3-I/3
On February 24, 2023, the court held a hearing on the City’s motion. The
City rested on its brief, and Schreck argued that he should prevail on the merits
of his claim. The court reserved its ruling.
Three days later on February 27, the court issued an order granting the
City’s motion and dismissing Schreck’s complaint with prejudice.3 The court
explained that Schreck “never applied for the program, according to his
complaint,” and that “[h]e needed to actually apply to have standing in his claim
of discrimination.” Or, “[p]ut another way, for him to state a claim he needed to
allege some act that caused him damage, and that has to be more than simply
telling the City that the racial preference was wrong.”
Schreck appeals.
ANALYSIS
Schreck argues that the trial court erred by dismissing his complaint for
lack of standing.4 We disagree.
We review de novo an order dismissing a case for lack of standing under
CR 12(b)(6). Kanam v. Kmet, 21 Wn. App. 2d 902, 909, 508 P.3d 1071 (2022).
Dismissal under CR 12(b)(6) is proper where “ ‘it appears beyond doubt that the
plaintiff can prove no set of facts consistent with the complaint that would entitle
3 The court also concluded that his claims were moot. 4 Schreck also assigns error to the commissioner’s denial of his motion for an ex parte TRO, the conduct of the King County Superior Court Clerk’s Office, and the actions of a superior court bailiff. But he fails to support his assignments of error with meaningful legal citations or analysis, so we do not address those claims. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we consider argument in an opening brief waived if it is unsupported by reference to the record or citation to authority).
3 No. 85154-3-I/4
him or her to relief.’ ” Id. at 910 (quoting Larson v. Snohomish County, 20 Wn.
App. 2d 243, 263, 499 P.3d 957 (2021)). We take the plaintiff’s allegations in the
complaint as true and can consider hypothetical facts outside the record. Id. But
if a claim remains legally insufficient even under proffered hypothetical facts,
dismissal under CR 12(b)(6) is appropriate. Alim v. City of Seattle, 14 Wn. App.
2d 838, 851, 474 P.3d 589 (2020).
“ ‘Standing is a party’s right to make a legal claim or seek judicial
enforcement of a duty or a right.’ ” Kanam, 21 Wn. App. 2d at 908-095 (quoting
State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (2007)). “ ‘The kernel of the
standing doctrine is that one who is not adversely affected by a statute may not
question its validity.’ ” Alim, 14 Wn. App. 2d at 851-52 (quoting Walker v. Munro,
124 Wn.2d 402, 419, 879 P.2d 920 (1994)). We apply a two-part test to
determine whether a party has legal standing. Nelson v. Appleway Chevrolet,
Inc., 129 Wn. App. 927, 939, 121 P.3d 95 (2005), aff’d, 160 Wn.2d 173, 157 P.3d
847 (2007). First, we ask “whether the interest asserted is arguably within the
zone of interests protected by the statute or constitutional right at issue.” Id.
Second, we determine “whether the party seeking standing has suffered an injury
in fact, economic or otherwise.” Id. A financial loss amounts to an injury in fact.
City of Longview v. Wallin, 174 Wn. App. 763, 782, 301 P.3d 45 (2013). But a
plaintiff lacks standing if their injury is merely conjectural or hypothetical.
Trepanier v. City of Everett, 64 Wn. App. 380, 383, 824 P.2d 524 (1992).
5 Internal quotation marks omitted.
4 No. 85154-3-I/5
Schreck’s complaint alleges that “Seattle Restored is a [c]ity program from
the OED” and that the program “claimed preference would be given to BIPOC”
individuals, which Porter “verified . . . via phone conversation.” Schreck explains
that Porter told him that “she ‘just wanted to give the money to artists.’ ” And he
asserts that the program is unconstitutional and violates RCW 49.60.400,6 which
entitles him to “one million dollars in damages or a halt to racial preference.” But
Schreck does not assert in his complaint that he actually applied to the program
or that Seattle Restored denied his application. As a result, Schreck does not
show that he was harmed by the program, and he lacks standing to sue. See
Trepanier, 64 Wn. App. at 383 (conjectural injury confers “no standing”).
Still, Schreck argues that because he is a pro se plaintiff, the court should
have helped him better understand the law and civil procedure so that he could
avoid dismissal for lack of standing. But the court had no such duty. Pro se
litigants are bound by the same rules of procedure and substantive law as
attorneys. Westberg v. All-Purpose Structures Inc., 86 Wn. App. 405, 411, 936
P.2d 1175 (1997). And courts must treat pro se parties just like lawyers.
Edwards v. Le Duc, 157 Wn. App. 455, 464, 238 P.3d 1187 (2010); see also In re
Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (trial court “under
no obligation to grant special favors” to pro se party).
6 RCW 49.60.400(1) provides, “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
5 No. 85154-3-I/6
Because Schreck does not allege that he applied for and was denied
assistance by the City, the trial court did not err by dismissing his complaint
under CR 12(b)(6). We affirm.7
WE CONCUR:
7 Because we hold that Schreck lacks standing, we do not reach his argument that the court erred by dismissing his complaint as moot.