State v. Evergreen Freedom Found.

432 P.3d 805, 192 Wash. 2d 782
CourtWashington Supreme Court
DecidedJanuary 10, 2019
Docket95281-7
StatusPublished
Cited by28 cases

This text of 432 P.3d 805 (State v. Evergreen Freedom Found.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Evergreen Freedom Found., 432 P.3d 805, 192 Wash. 2d 782 (Wash. 2019).

Opinions

MADSEN, J.

*785¶ 1 This case involves statutory interpretation concerning application of the reporting requirements contained in the Fair Campaign Practices Act (FCPA), chapter 42.17A RCW. 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")1 are to be *786applied in the context of local initiatives. For the reasons explained below, we hold that under the circumstances of this case, pro bono legal services, which Evergreen Freedom Foundation provided to initiative proponents, were reportable to the Public Disclosure Commission *808(PDC) under the above noted statutes. We affirm the Court of Appeals' reversal of the 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

¶ 2 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.

¶ 3 The proponents submitted the proposed measures to their local city clerks along with signatures they had gathered in support of the 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 of the cities passed the measures as ordinances or placed the ballot propositions on the local ballots.2

*787¶ 4 In response, EFF employees, who are attorneys, participated in lawsuits against each jurisdiction on behalf of the 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.

¶ 5 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 of the local ballot propositions.3 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.4 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.5

¶ 6 EFF moved to dismiss the State's enforcement action, asserting that the local propositions were not "ballot propositions" as defined in RCW 42.17A.005(4). Clerk's Papers at *78824. 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.

¶ 7 The State opposed the motion and the statutory interpretation asserted by EFF. The State argued that EFF's reading of the *809statute 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.

¶ 8 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 of Proceedings 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.

¶ 9 The State sought direct review and this court transferred the case to Division Two of the Court of Appeals. Order, State v. Evergreen Freedom Found., No. 93232-8, 2017 WL 1177091 (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 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 Wash. App. 2d 288, 293, 404 P.3d 618 (2017) (published in part). The Court of Appeals also rejected EFF's argument that reporting requirements could apply only to electioneering that occurs once a proposition has been placed on the ballot. Id. at 306, 404 P.3d 618.

*789The court concluded that RCW 42.17A.255 does not violate EFF's First Amendment rights. Id. at 307, 404 P.3d 618. In the unpublished portion of the opinion, the Court of Appeals rejected EFF'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%20Opinion.pdf. EFF petitioned for review, which this court granted. State v. Evergreen Freedom Found., 190 Wash.2d 1002,

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Bluebook (online)
432 P.3d 805, 192 Wash. 2d 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evergreen-freedom-found-wash-2019.