Utter v. Bldg. Indus. Ass'n of Wash.

• Court: Washington Supreme Court
• Decided: January 22, 2015
• Docket: 89462-1
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ROBERT F. UTTER and FAITH IRELAND, NO. 89462-1 in the name ofthe STATE OF WASHINGTON, ENBANC Petitioners,

v. BUILDING INDUSTRY ASSOCIATION Filed JAN 2 2 2015 OF WASHINGTON,

Respondent.

GORDON McCLOUD, J.-Retired Justices Robert Utter and Faith Ireland

(plaintiffs) sued the Building Industry Association of Washington (BIAW), alleging

that BIAW violated Washington's Fair Campaign Practices Act (FCPA), chapter

42.17 A RCW, in part by failing to register as a political committee during the 2007-

2008 campaign season. The trial court granted BIAW' s motion for summary

judgment and dismissed the case on the ground that there was no material factual

dispute and BIAW was entitled to judgment as a matter oflaw, but it denied BIAW's Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

request for attorney fees. The Court of Appeals, following reconsideration,

ultimately affirmed; it stated in dicta that there was an issue of fact as to whether

BIAW met the statutory definition of a "political committee," but held only that the

plaintiffs' case did not meet the procedural prerequisites to filing a citizen suit. Utter

v. Bldg. Indus. Ass'n of Wash., 176 Wn. App. 646, 672-73, 310 P.3d 829 (2013).

The Court of Appeals also affirmed the trial court's denial of BIAW's request for

attorney fees. !d. at 67 4-77.

The plaintiffs petitioned this court, and we accepted review. Utter v. Bldg.

Indus. Ass 'n of Wash., 179 Wn.2d 1021, 336 P.3d 1165 (2014). The BIAW cross

petition~d on the attorney fees claim, but we denied review. !d. We reverse the

Court of Appeals and hold that (1) the plaintiffs' suit was not procedurally barred

under our State's citizen suit provision and (2) the plaintiffs have presented sufficient

evidence to raise a genuine issue of material fact about whether BIAW met the

statutory definition of a "political committee."

FACTS

The nonprofit BIAW formed the for-profit BIAW Member Services

Corporation (BIAW-MSC) in 1993. BIAW and BIAW-MSC share the same

leadership-BIAW's president, vice president, first vice president, secretary,

treasurer, and immediate vice president are also the officers ofBIAW-MSC. BIAW

2 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

and BIA W-MSC also share the same staff; they are paid by one organization or the

other depending on the nature of their work.

BIA W established BIAW-MSC largely to administer a "retro program" under

rules established by the Department of Labor and Industries (L&I). Clerk's Papers

(CP) at 175. Under the retro program rules, members can pool their workers

compensation risks and, at the end of the reporting period, obtain a refund if the

actual claims add up to less than the expected claims. See RCW 51.18.010. L&I

typically pays the refund to BIAW, the organization eligible to receive the refund,

and then BIAW deposits the refund into the bank account ofBIAW-MSC. A portion

of the refund amount is eventually distributed to BIAW's local associations. BIAW

calls its retro program the "Return on Industrial Insurance program" (ROil).

It is undisputed that in 2007, the ROil refund was much greater than

anticipated. As a result, in 2007, BIAW, or BIAW-MSC (this is disputed), asked

the local associations to pledge any refund amount in excess of their budget

projections to aid in the upcoming governor's race. Ultimately those funds were

transferred to ChangeP AC, a political action committee.

On July 25, 2008, the plaintiffs sent a letter to the attorney general (AG)

stating that the plaintiffs suspected BIAW and BIAW-MSC had each violated the

FCP A by failing to register as a political committee and failing to report

contributions and expenditures. The AG referred the complaint to the Public

3 Utter et al. v. Bldg. Indus. Ass'n of Wash., No. 89462-1

Disclosure Commission (PDC) that same day for investigation. The PDC

investigation concluded that BIAW was not a political committee but that BIAW-

MSC may have been. The AG sued BIAW-MSC, but not BIAW. BIAW-MSC

settled.

The plaintiffs then sued BIAW under the citizen suit provision of the PCPA,

which permits citizens to file a "citizen action" alleging violations of the act if they

give notice of a violation in writing to the AG and the AG "fail[s] to commence an

action hereunder." RCW 42.17 A.765(4)(a)(i). Plaintiffs alleged thatBIAW violated

the PCP A by failing to register as a political committee, by improperly coordinating

expenditures with Mr. Dino Rossi (gubernatorial candidate in 2008), and by

exceeding contribution limits. BIAW moved for summary judgment on several

grounds. The trial court granted BIAW' s motion without explaining its reasoning

but denied BIAW's request for attorney fees under RCW 42.17A.765(4)(b). 1

Plaintiffs appealed the grant of summary judgment only as to the political committee

claim, and BIAW cross appealed the denial of attorney fees.

The Court of Appeals reversed the trial court's grant of summary judgment in

an unpublished opinion but then granted BIAW's motion for reconsideration. 176

1 "In the case of a citizen's action that is dismissed and that the court also finds was brought without reasonable cause, the court may order the person commencing the action to pay all costs of trial and reasonable attorney fees incurred by the defendant." RCW 42.17A.765(4)(b). 4 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

Wn. App. 646. On reconsideration, in a published opinion, the Court of Appeals

stated in dicta that the plaintiffs had raised an issue of fact sufficient to prevent

summary judgment. !d. at 656. But the appellate court affirmed the trial court's

dismissal of the case on a procedural ground. It explained that the PDC investigation

into BIAW constituted an "action" by the AG under the citizen suit provision, thus

precluding the plaintiffs from commencing their own "action." !d. at 670-74. It also

affirmed the trial court's denial ofBIAW's request for attorney fees. !d. at 674-77.

Plaintiffs petitioned this court for review, and we granted it. 179 Wn.2d 1021.

We denied BIAW' s cross petition on the attorney fees issue. !d. There are thus only

two issues before the court. The first question is whether the PDC investigation

precludes plaintiffs from suing BIAW under the citizen suit provision. As discussed

below, the answer to that question is no. We therefore also address the second

question, that is, whether the trial court erred in granting summary judgment to

BIAW on the political committee issue. The answer to that question is yes, because

some aspects of the political committee issue present triable questions of fact.

ANALYSIS

I. STANDARD OF REVIEW

This case requires us to interpret several provisions of the FCP A. We review

matters of statutory interpretation de novo. State v. Wentz, 149 Wn.2d 342, 346, 68

P.3d 282 (2003). The provisions of the FCPA, moreover, "shall be liberally

5 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

construed to promote complete disclosure of all information respecting the financing

of political campaigns and lobbying, and the financial affairs of elected officials and

candidates, and full access to public records so as to assure continuing public

confidence of fairness of elections and governmental processes, and so as to assure

that the public interest will be fully protected." RCW 42.17 A.OO 1.

We likewise review a trial court's order granting summary judgment de novo.

Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011). In conducting this

review, we view all the evidence in the light most favorable to the nonmoving party.

ld. Summary judgment is appropriate "if ... there is no genuine issue as to any

material fact and ... the moving party is entitled to a judgment as a matter of law."

Civil Rules (CR) 56(c).

II. THE CITIZEN SUIT PROVISION

A statute gives Washington citizens the right to sue for unfair campaign

practices. But there is a prerequisite. The citizen must first give notice of a violation

in writing to the AG; the citizen may then sue if the AG "failed to commence an

action hereunder within forty-five days after the notice." RCW 42.17 A.765( 4)(a)(i).

The Court of Appeals held that where the AG refers a complaint to the PDC for

investigation after receiving such notice from a citizen, the referral itself counts as

"'commenc[ing] an action."' Utter, 176 Wn. App. at 672-73 (quoting RCW

42.17 A.765 (4)(a)(i)). Thus, according to the Court of Appeals, where the AG refers

6 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

for investigation or investigates a complaint, the notice-giving citizen may not sue

even if the AG declines to sue. Id.

Our review involves statutory interpretation of RCW 42.17A.765. That

statute is titled "Enforcement." Its first three subsections define various ways the

AG may enforce the fair campaign statutes:

( 1) The attorney general and the prosecuting authorities of political subdivisions of this state 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.

(2) The attorney general and the prosecuting authorities of political subdivisions of this state may investigate or cause to be investigated the activities of any person who there is reason to believe is or has been acting in violation of this chapter, and may require any such person or any other person reasonably believed to have information concerning the activities of such person to appear at a time and place designated . . . to give such information under oath and to produce all ... documents which may be relevant or material to any investigation authorized under this chapter.

(3) When the attorney general or the prosecuting authority of any political subdivision of this state requires the attendance of any person to obtain such information ... , he or she shall issue an order setting forth the time when and the place where attendance is required and shall cause the same to be delivered to or sent by registered mail to the person at least fourteen days before the date fixed for attendance. The order shall have the same force and effect as a subpoena ....

RCW 42.17A.765 (emphasis added). Finally, subsection (4) provides a mechanism

for citizen, as opposed to AG, enforcement:

A person who has notified the attorney general and the prosecuting attorney in the county in which the violation occurred in writing that

7 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

there is reason to believe that some provision of this chapter is being or has been violated may himself or herself bring in the name of the state any of the actions (hereinafter referred to as a citizen's action) authorized under this chapter. RCW 42.17A.765(4) (emphasis added). A "person" may "bring" such a "citizen's

action," however, only if "[t]he attorney general and the prosecuting attorney have

failed to commence an action hereunder within forty-five days after the notice."

RCW 42.17A.765(4)(a)(i) (emphasis added).

The Court of Appeals reasoned that subsections (2) and (3) above, permitting

the AG to instigate an investigation and issue orders to facilitate the investigation,

constituted "actions ... authorized under this chapter." RCW 42.17A.765(4). Thus,

the Court of Appeals concluded that if the AG refers a complaint for investigation,

then it has not "failed to commence an action hereunder." RCW

42.17 A.765(4)(a)(i). In sum, therefore, if the AG merely investigates, the citizen

cannot sue. Utter, 176 Wn. App. at 672-74.

We must therefore decide what it means for the AG to "commence an action"

under RCW 42.17A.765(4)(a)(i). The Court of Appeals equates the word "action"

in RCW 42.17A.765(4) with the investigatory enforcement mechanisms laid out in

subsections (2) and (3). But only subsection (1) uses the word "actions"-it says,

"The attorney general and the prosecuting authorities of political subdivisions of this

state may bring civil actions .... " RCW 42.17A.765(1). The other subsections

8 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

refer to investigatory mechanisms the AG may use to enforce fair campaign laws

and make no mention of"actions." 2

Moreover, the word "action," as used in "failed to commence an action

hereunder," RCW 42.17 A.765(4)(a)(i), has a context. The introductory paragraph

immediately preceding that phrase clearly grants citizens the right to "bring in the

name of the state any of the actions (hereinafter referred to as a citizen's action)

authorized under this chapter." RCW 42.17A.765(4) (emphasis added). This

sequencing suggests that "commenc[ing] an action" in subsection (4)(a)(i) refers

back to the same type of action as the "citizen['s] action" in subsection (4)(a)-the

immediately preceding introductory paragraph using the word "action." This

sequencing also suggests that "commenc[ing] an action" in subsection (4)(a)(i) does

not include the other nonaction enforcement steps available to the AG per the

previous subsections-that is, "investigat[ing]," RCW 42.17 A. 765(2), "requir[ing]"

a person to appear, id., or "issu[ing] an order," RCW 42.17A.765(3).

Further, as a matter of plain language, "an action" and the phrase "commence

an action" are legal terms of art that mean "a lawsuit" or "to sue." See, e.g., BLACK's

LAW DICTIONARY 35 (lOth ed. 2014). In accordance with that plain meaning, the

2 Subsection (3) does contain the word "actions," but it is used in a context irrelevant to this case: "In any case where the order is not enforced by the court according to its terms, the reasons for the court's actions shall be clearly stated in writing . . . . " RCW 42.17 A.765(3). 9 Utteretal. v. Bldg. Indus. Ass'n ofWash., No. 89462-1

statute does not use the term "action" in isolation but refers to "bring[ing],"

"fil[ing]," and, in the specific provision at issue, "commenc[ing]" an action. RCW

42.17A.765(1), (4), (5). "Commence an action" does not mean "to investigate" in

ordinary legal terminology. See, e.g., Goldmark v. McKenna, 172 Wn.2d 568, 575,

259 P.3d 1095 (2011) (attorney general has power to commence actions); Waples v.

Yi, 169 Wn.2d 152, 159, 234 P.3d 187 (2010) (action is "commence[d]" by filing

complaint (citing CR 3(a))); State v. Conte, 159 Wn.2d 797, 810, 154 P.3d 194

(2007) (discussing attorney general's power to "bring an action"); Whitney v.

Buckner, 107 Wn.2d 861, 865, 734 P.2d 485 (1987) (right of access to courts

includes right to "bring" or "commence" "actions"); Berge v. Gorton, 88 Wn.2d 756,

761, 567 P.2d 187 (1977) (attorney general has power to "commence actions"). The

Court of Appeals' interpretation is, thus, probably not what the voters intended. 3

In addition, the Court of Appeals' interpretation causes absurd results. If

subsections (2) and (3) are authorized "actions" under chapter 42.17 A RCW, then

they are also "citizen's actions." RCW 42.17A.765(4) ("A person who has notified

the [AG] may himself or herself bring in the name of the state any of the actions

(hereinafter referred to as a citizen's action) authorized under this chapter."). Thus,

3 The statute at issue was created through the initiative process. We interpret initiatives according to the general rules of statutory construction. City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d 91, 97, 758 P.2d 480 (1988) (citing Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 460, 722 P.2d 808 (1986)).

10 Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

under the Court of Appeals' interpretation, if the AG fails to act, a citizen could

investigate on his or her own in the name of the state, personally issue orders with

the same authority as a subpoena; require the appearance of other citizens to answer

questions, and take all the other steps authorized by subsections (2) and (3) above

for the AG. That is not a reasonable interpretation of the statute.

The plaintiffs also argue that as a practical matter, the AG initially refers all

complaints to the PDC for investigation. Thus, if the Court of Appeals'

interpretation were correct, the PDC-a government agency-would unilaterally bar

all citizen suits for violation of Title 42 RCW just by investigating. The voters

cannot possibly have intended to create a citizen's right to sue when the government

will not but allow the government to bar every one of those suits with a procedural

quirk

BIAW argues, however, that there is a difference between a routine referral

of a complaint and a case like this one, where the PDC conducts a substantial

investigation and makes a recommendation to the AG regarding the merits of a case.

BIAW thus asserts that a more formal investigation by the PDC constitutes an

"action" under the statute, while a less formal investigation does not. BIAW offers

no citation for this distinction, nor does it explain how to tell the difference between

them.

We decline BIAW' s invitation to have the courts engage in an after-the-fact

11 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

analysis of whether a particular investigation was thorough enough to qualify as an

"action," especially without established standards to help the courts make such a

determination. Moreover, BIAW's interpretation would defeat the purpose of

providing for citizen suits in the first place, because the AG likely declines to sue in

exactly those instances where the PDC investigation concludes that no violation

occurred. The statute is obviously based on the notion that the government may be

wrong, and then it is up to citizens to expose the violation. 4

Finally, BIA W argues that this court has held that the citizen suit provision

was constitutional "because it applied only in those instances where the state took

'no action,' investigatory or otherwise, at the end of the statutory notice periods."

BIAW's Suppl. Br. at 10 (emphasis omitted) (quoting Fritz v. Gorton, 83 Wn.2d

275,314,517 P.2d 911 (1974)). Thus, BIAW argues, interpreting "action" here to

4 BIAW, in a brief responding to amici arguments, also argues that "commence an action" must include "investigation" because otherwise citizens could sue even where the PDC pursues an administrative action based on an investigation of a citizen's complaint, as it is permitted to do under RCW 42.17 A.755. BIAW argues it would be an absurd result to permit both a PDC administrative action and a citizen suit. First, the PDC in this case did not commence any action, administrative or judicial; thus, this question is not presented. Second, BIAW does not explain why that result is absurd. Through administrative enforcement, the PDC may issue orders requiring the respondent "to cease and desist from the activity that constitutes a violation" and "may assess a penalty in an amount not to exceed ten thousand dollars." RCW 42.17A.755(4) (emphasis added). The amounts at issue in a lawsuit are significantly higher. For example, BIA W-MSC settled the AG's suit against it for $584,000. When a citizen wins a suit under the FCPA, "the judgment awarded shall escheat to the state,'' less the citizen's costs and attorney fees. RCW 42.17A.765(4)(b). A PDC action thus serves as significantly less of a deterrent to illegal campaign practices. 12 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

exclude "investigation" renders the citizen suit provision unconstitutional.

The cited case does not make the holding BIAW attributes to it. Instead, we

said:

In our view, the qui tam provision of initiative section 40(4) poses no problem of constitutional dimension. We note respondents' assertion that they fear the threat of frivolous and unwarranted harassment suits. In this connection we can also note that should the suitor fail in his action the trial court, upon finding lack of reasonable cause, may reimburse the defendant for his costs and attorney's fees. In view of the current high costs of legal services, we regard this as no small deterrent against frivolous and harassing suits. Additionally, the plaintiff in such cases is required to give the Attorney General a 40-day notice of an alleged violation. The litigant may then proceed only after the service of a second 10-day notice results in no action on the part of the Attorney General.

We feel that these specified safeguards are ample protection against frivolous and abusive lawsuits. Should, however, the courts experience a significant number of palpably frivolous lawsuits, this court may not be without the tools to fashion a remedy within its rule- making powers.

Fritz, 83 Wn.2d at 314 (emphasis omitted). Thus, Fritz does not support BIAW' s

argument on this point.

We hold that RCW 42.17 A.765 precludes a citizen suit only where the AG or

local prosecuting authorities bring a suit themselves, and it does not preclude a

citizen suit where the AG declines to sue. 5

5We do not address the question of whether administrative action by the PDC against an entity would preclude a citizen suit, as discussed in note 2, supra. 13 Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

III. . THE DEFINITION OF "POLITICAL COMMITTEE"

We next consider whether the trial court erred in granting summary judgment

to BIAW. Specifically, we must decide if the plaintiffs have raised a genuine issue

of material fact regarding whether BIAW fell within the statutory definition of a

"political committee" during the relevant time period. We hold that they have.

A. Plaintiffs Have Raised a Genuine Issue ofMaterial Fact about Whether BIAW Fell under Washington's Definition of a "Political Committee" During the 2007-2008 Campaign Season

A "political committee" is required to file a statement of organization with the

PDC, RCW 42.17 A.205(1), and make a variety of detailed disclosures. Id.; see also

RCW 42.17 A.235. The central issue here is whether BIAW (as opposed to BIAW-

MSC) was a political committee and therefore violated the law by failing to file and

disclose.

RCW 42.17 A.005(37) defines "political committee":

"Political committee" means any person (except a candidate or an individual dealing with his or her own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition.

(Emphasis added.) Thus, under this statute, an entity becomes a "political

committee" with reporting requirements if it "expect[s]" to "receiv[e] contributions"

or "mak[ e] expenditures" regarding an upcoming election. !d. The statute does not

say what proportion of the entity's purpose, if any, must be devoted to "expect[ed]"

14 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

expenditures to qualify as a political committee with reporting requirements. Id.

To provide some background for our discussion of this definition and how it

applies to this case, we begin by reviewing the few prior Washington decisions

interpreting that statutory definition. This court has addressed the definition of

"political committee" in only one relevant case, State v. (1972) Dan J. Evans

Campaign Comm., 86 Wn.2d 503, 546 P.2d 75 (1976). 6 The relevant portion is only

one paragraph, and since that paragraph represents almost all this court's

jurisprudence on the issue, we quote it in full:

In the instant case, the Dan Evans Committee made a single contribution of $500 to the Early Birds Fund of the Washington Republican Central Committee, a political committee obligated to disclose the contribution. The record reflects no expenditures for the purpose of supporting or opposing a specific candidate or ballot proposition. No other contributions of a similar nature were made. There is no competent evidence in the record to indicate that the Dan Evans Committee solicited, received, or even had the expectation of receiving contributions to be used in support of or in opposition to candidates or ballot propositions. To require reporting and disclosure by the Dan Evans Committee or other persons who make a single contribution to a political committee under these circumstances (in the absence of other qualitative facts) would result in an unnecessary and unreasonable duplication and extension of the act's detailed and somewhat lengthy reporting requirements. Where the surrounding facts and circumstances indicate that the primary or one ofthe primary purposes of the person making the contribution is to affect, directly or

6 We have held that the words "in support of, or opposition to, any candidate" in the statutory definition did not render the statute vague, but that holding is not relevant here. Voters Educ. Comm. v. Wash. State Pub. Disclosure Comm 'n, 161 Wn.2d 470, 490, 166 P.3d 1174 (2007). 15 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

indirectly, governmental decision making by supporting or opposing candidates or ballot propositions, then that person becomes a 'political committee' and is subject to the act's disclosure requirements. See Attorney General Opinion 1973, June 8, 1973. The primary purpose of the Dan Evans Committee was not to influence the political process by supporting or opposing candidates or ballot propositions through expenditures of its funds, but to pay for miscellaneous expenses incurred by Governor Evans and his staff in connection with his position as a public official. Plaintiffs contention to the contrary creates no material issue of fact.

!d. at 508-09 (some emphasis added). This discussion first uses the language "the

primary or one ofthe primary purposes" to describe what it takes to trigger reporting

requirements based on election expenditures. Id. at 509 (some emphasis added).

But it actually concludes that the committee in that case lacked "the primary

purpose[ ]" of influencing an election without going on to address whether it also

lacked a primary purpose of doing so. !d. (some emphasis added). Thus, although

this case has been cited for adopting a looser "a primary purpose" test triggering

filing and reporting requirements under the "expenditure" prong of RCW

42.17 A.005(37), rather than the more restrictive "the primary purpose" test as the

prerequisite, the case does not clearly express that as a holding.

The Court of Appeals, however, has so held, in only one case (not counting

the instant case). According to the Court of Appeals:

The Act sets forth two alternative prongs under which an individual or organization may become a political committee and subject to the Act's reporting requirements. "'Political committee"'

16 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

means any person ... having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition." RCW 42.17.020(33). Thus, a person or organization may become a political committee by either (1) expecting to receive or receiving contributions, or (2) expecting to make or making expenditures to further electoral political goals.

State ex rei. Evergreen Freedom Found. v. Wash. Educ. Ass 'n, 111 Wn. App. 586,

598, 49 P.3d 894 (2002) (EFF) (alteration in original). The EFF court then stated

that, according to this court in Dan J Evans, an entity will not become a political

committee with filing and disclosure requirements under the "expenditure" prong

unless it also has the support of a political candidate or initiative as the "'primary or

one of the primary purposes.'" Id. at 598-99 (quoting Dan J Evans, 86 Wn.2d at

509).

The parties make statutory and constitutional arguments about how to

interpret, and to apply, these "primary purpose" tests. As this summary shows, our

prior precedent does not fully answer those questions. Clearly, though, an entity can

meet the definition of a "political committee" under either the "receiving

contributions" or "making expenditures" portion of the statutory definition, plus

whatever "purpose" test might also be added on to that statutory definition. We

address whether the plaintiffs' claims survive under either the contribution prong or

the expenditure prong of the statute, and we deal with the controversy over the

"purpose" test under the expenditure prong-the only prong under which BIAW

17 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

raises it.

1. Contribution Prong

The Court of Appeals in this case stated that "the evidence does not create a

genuine issue of material fact as to the contribution prong." Utter, 176 Wn. App. at

656. It explained, "The issue is whether BIAW or BIAW-MSC expected to receive

and ultimately did receive the ... funds [contributions] from the local associations."

Id. (emphasis added). It then concluded that because BIAW-MSC, not BIAW,

ultimately received the contributions in its account and then disbursed them to a

registered political committee, ChangeP AC, there was no issue of fact as to whether

BIAW expected to receive contributions. Id.

But the contribution prong, as the Court of Appeals stated correctly earlier in

its opinion, asks whether an organization "expects to receive or receives

contributions toward electoral goals. "Id. at 655 (emphasis added) (citing EFF, 111

Wn. App. at 599). Not whether it expects to receive and receives. That

interpretation is in line with the statutory language: "'Political committee' means

any person . . having the expectation of receiving contributions or making

expenditures." RCW 42.17A.005(37). "Expectation" clearly applies to

"contributions" (and also "expenditures").

The plaintiffs therefore have the better of the argument when they say that the

ultimate disposition of the funds does not answer the contribution question; the

18 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

expectation is what matters. And here, as plaintiffs explain, they have presented

evidence tending to show that BIAW expected contributions.

This is clear from the statutory definition of "contribution" and the plaintiffs'

evidence tending to show such "contributions." A "contribution" is defined in part

as a "pledge," RCW 42.17 A.005(13)(a)(i), and an organization must register as a

political committee "within two weeks after organization or within two weeks after

the date the committee first has the expectation of receiving contributions or making

expenditures in any election campaign, whichever is earlier." RCW 42.17 A.205(1 ).

The plaintiffs filed multiple contemporaneous documents soliciting pledges for

"BIAW" as well as documents stating that pledges were made "to BIAW." E.g., CP

at 419, 432, 433, 435. This includes, for example, an e-mail from Daimon Doyle,

then BIAW and BIAW-MSC president, dated March 12, 2007, stating, "Attached

are the following documents: the formal resolution (rossi-lution) that we will be

asking our 15 locals to support as well as some talking points .... We ... need to

be extra careful ... since Dino is not a declared candidate we can't raise money for

him therefore all official references are for a '08 candidate for Governor." CP at

410. The "rossi-lution" itself stated:

WHEREAS BIAW is committing 100% of excess retro dollars to the 2008 gubernatorial election, WHEREAS participation of local associations is necessary for success, NOW THEREFORE BE IT RESOLVED THAT,

19 Utter et al. v. Bldg. Indus. Ass'n ofWash., No. 89462-1

The following local associations pledge that all Retro Marketing Assistance funds received in 2007, beyond the amount budgeted for the year, will be sent to the BIAW and placed in the BIAW 2008 gubernatorial election account, to be used for efforts in the 2008 gubernatorial race.

CP at 411. The plaintiffs also point to meeting minutes of local associations that

appear to make pledges directly to BIAW. For example, "[i]t was MSPU [motion,

seconded, passed, unanimous] to give BIAW the excess of budgeted funds ... to

help in the governor race in 2008." CP at 433. Numerous additional documents-

e-mails, meeting minutes, agendas, and organizational resolutions-also state that

"BIAW" is soliciting funds to support its candidate in the upcoming election. See

generally CP at 410-55.

The Court of Appeals and BIAW explain that this evidence does not prove

anything about BIAW' s intentions or expectations because "BIAW submitted

evidence that 'BIAW' was used generically to refer to BIAW-MSC, BIAW, or

both." Utter, 176 Wn. App. at 656. Therefore, "[t]he documents to which Utter and

Ireland point fail to create an issue of fact." I d.

BIAW' s premise does not lead to its conclusion. Instead, the fact that

"BIAW" could refer to either or both BIAW and BIAW-MSC means that the use of

"BIAW" in the documents at issue does not clarify to which organization the

documents refer. The admittedly dual meaning of "BIAW" means that two

20 Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

interpretations are possible. 7 It leaves an open question of fact about which

interpretation is correct in each context. The BIAW' s officers' declarations

explaining that BIAW was really asking the local organizations to pledge to

ChangePAC, not BIAW, e.g., CP at 153, are not sufficient to support summary

judgment in light of the plaintiffs' evidence, either. As the plaintiffs point out, the

ultimate collection of the pledged funds and distribution to ChangePAC, which does

seem to have been accomplished by BIA W-MSC, occurred after the date that the

plaintiffs first filed their complaint with the AG's office. And, as noted above, the

legal question is which organization had the expectation of receiving contributions.

The ultimate acquisition of such funds may certainly be a fact relevant to

determining whether an organization expected to receive funds; similarly, BIAW's

practice of using "BIAW" to refer to both "BIAW" and "BIAW -MSC" is also a fact

relevant to making that determination. But neither fact is dispositive, since BIAW

itself acknowledges that "BIAW" sometimes really does mean just "BIAW."

Plaintiffs have established a genuine issue of material fact that precludes

summary judgment on the contribution prong.

2. Expenditure Prong

BIA W argues that for plaintiffs to prove BIAW is a "political committee"

7 See, e.g., Anthis v. Copland, 173 Wn.2d 752, 756, 270 P.3d 574 (2012) (statute subject to two reasonable interpretations is ambiguous). 21 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

under the expenditure prong, plaintiffs must show that ( 1) BIAW made or expected

to make expenditures in support of a candidate and (2) BIAW had "the primary

purpose" of supporting an election candidate or initiative. We deal with each

argument in turn.

1. There Is a Material Question of Fact about Whether BIAW (as Opposed to BIAW-MSC) Expended or Expected To Expend Funds

The plaintiffs argue that BIAW, not BIAW-MSC, expected to and then

actually made the expenditures at issue here. The plaintiffs point to the doubtful

ownership of the ROil funds (for example, if BIAW receives the funds and then

gives them to BIAW-MSC with the express purpose that BIAW-MSC spend them

to help elect Dino Rossi, who is "expending" those funds?). They also rely on a

number of documents that BIAW filed with the PDC stating that BIAW was

expending funds. For example, one typical document states that the "Building

Industry Assn ofWA" expended $233,648.89 to support candidate Dino Rossi. CP

at 253.

BIAW responds that this expenditure, and the other documented expenditures

also listing "BIAW" as the entity expending funds, was really made by BIA W-

MSC-but there was not enough room on the PDC forms to fill in the full name .

.BIAW further asserts that the PDC investigation found that it was BIAW-MSC that

expended the funds, not BIAW, and that that is dispositive.

22 Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

The Court of Appeals agreed with BIAW. It stated that most of the plaintiffs'

documents did not create any issue of fact as to the expenditure prong, 8 and it relied

on the PDC report that formed the basis for the AG's decision not to sue BIA W.

Utter, 176 Wn. App. at 658. 9

The concurrence/dissent similarly argues, "In this circumstance, we should

defer to the PDC's findings because of its expertise in this area, and particularly

because of the PDC's fact-finding role, in which it weighed and evaluated

conflicting evidence, in reaching its determination that only the BIAW subsidiary,

BIAW-MSC, qualified as a political subcommittee." Concurrence/dissent at 4. The

concurrence/dissent also states that the PDC is "the agency created by and charged

with enforcing the FCPA." Concurrence/dissent at 6.

The Court of Appeals and the concurrence/dissent err for three reasons: first,

8 The Court of Appeals found there was a factual question as to the expenditure prong based on BIA W's 2008 Internal Revenue Service (IRS) form, which stated that BIA W made political expenditures in the amount of $165,214. Utter, 176 Wn.2d at 659. BIA W argues that was simply a mistake and therefore does not create an issue of fact. The plaintiffs have, however, likely raised an issue of fact as to who made the expenditures based on BIAW's submissions to the PDC naming itself and not BIAW-MSC. Again, BIAW' s argument that "BIAW" can refer to either entity or both entities seems to create, rather than resolve, the factual question. Also, BIAW' s argument that its 2008 IRS form contained a clerical error might well be accepted by a fact finder but, in light of all the other evidence, it is not sufficient to support summary judgment. 9While the trial court in this case did not explain its reasoning, its summary judgment order states that it considered the PDC's "Executive Summary and Staff Analysis" and the PDC's "Report of Investigation." CP at 833.

23 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

the PDC's legal conclusions here concern statutory interpretation ofthe FCPA, and

we therefore apply de novo, not deferential, review; second, the PDC's factual

conclusions about whether a set of documents definitively establishes BIAW' s

independence from BIAW-MSC is neither technical nor complex, so we need not

defer; and third, the PDC's decision on this point was not an "agency determination"

and thus once again, we do not defer.

First, the PDC's conclusion that BIAW is not a political committee is based

at least in part on its interpretation of the FCP A, a statute. "Where statutory

construction is concerned, the error of law standard applies." Pub. Uti/. Dist. No. 1

ofPend Oreille County v. Dep 't ofEcology, 146 Wn.2d 778,790, 51 P.3d 744 (2002)

(citing RCW 34.05.570(3)(d)). To apply this standard, "the court determines the

meaning and purpose of a statute de novo, although in the case of an ambiguous

statute which falls within the agency's expertise, the agency's interpretation of the

statute is accorded great weight, provided it does not conflict with the statute." Id.

(citing Postema v. Pollution Control Hr'gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726

(2000)). Because the FCPA is not ambiguous, we need not defer to the PDC's

conclusion that BIAW was not a political committee in our de novo review.

Second, we recognize that the PDC based its conclusion partly on an

assessment of facts; but "substantial deference to agency views" applies mainly to

factual matters that are "complex, technical, and close to the heart of the agency's

24 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

expertise." Hillis v. Dep 't of Ecology, 131 Wn.2d 373, 396, 932 P.2d 139 (1997).

The question about the meaning of documents listing "BIAW," not "BIAW-MSC,"

is neither complex nor technical. The question before us-whether documents

listing "BIAW," not "BIAW-MSC," as the entity that solicited and obtained pledges

merely raises a material question of fact about whether they mean "BIAW" or

"BIAW-MSC"-is even less complex or technical. The limited amount of technical

knowledge required to evaluate these documents also militates against judicial

deference.

Finally, the PDC's investigation informing the AG of the beliefs of the PDC

staff was not an agency determination to which courts must defer. It was a decision

against taking action and against seeking a final determination. RCW 42.17A.755

states:

(1) The commissiOn may (a) determine whether an actual violation of this chapter has occurred; and (b) issue and enforce an appropriate order following such a determination.

(2) The commission, in cases where it chooses to determine whether an actual violation has occurred, shall hold a hearing pursuant to the administrative procedure act, chapter 34.05 RCW, to make a determination. Any order that the commission issues under this section shall be pursuant to such a hearing.

(3) In lieu of holding a hearing or issuing an order under this section, the commission may refer the matter to the attorney general or other enforcement agency as provided in RCW 42.17A.105.

25 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

(6) An order issued by the commission under this section shall be subject to judicial review under the administrative procedure act, chapter 34.05 RCW.

Thus, when the PDC chooses to determine if a violation occurred, it must either hold

an official hearing under the Administrative Procedure Act or refer the matter to the

AG in accordance with RCW 42.17A.105. RCW 42.17A.105(5), the only section

relevant to the nondetermination at issue here, states that the PDC shall, "[u]pon

complaint or upon its own motion, investigate and report apparent violations of this

chapter to the appropriate law enforcement authorities." A report concluding that

the PDC does not believe any violation requires reporting or other agency action

does not fall under any of the statutory categories that we could interpret as

constituting an agency action.

Indeed, as a practical matter, if the trial court can rely on the PDC's

conclusions to grant summary judgment, the effect will be similar to the effect of

holding that a PDC investigation alone precludes citizen suits. Such a holding would

make citizen suits virtually impossible because it is precisely those situations where

the PDC finds no violation occurred that the AG will likely refuse to sue. The Court

of Appeals therefore erred when it deferred to the PDC report.

Without deference to the PDC report, we are left with BIAW' s argument that

the actual expenditures all came from BIAW-MSC, not BIAW. But RCW

26 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

42.17 A.205(1) states that a political committee must register "within two weeks after

the date the committee first has the expectation of . .. making expenditures in any

election campaign." (Emphasis added.) And a political committee includes an

organization "having the expectation of . . . making expenditures." RCW

42.17A.005(37). The plaintiffs' evidence that BIAW, not BIAW-MSC, solicited

pledges from its local associations, and that those local associations pledged "to

BIAW," not BIAW-MSC or ChangePAC, raises a question of fact as to whether

BIAW had an expectation of making political expenditures, regardless of who

actually ended up expending the funds.

n. We Endorse the "A" Primary Purpose Test and Hold That There Is a Material Question of Fact about Whether BIAW (as Opposed to BIAW-MSC) Satisfied That Test

a. The Reporting Statute Contains No "Purpose" Test At All; To Construe That Statute as Constitutional, We Must Infer "a Primary Purpose" Test

RCW 42.17 A.005(37) does not say anything about whether an entity will be

treated as a "political committee" even if influencing an election is a minor part of

its mission. This is, however, an important First Amendment issue, and both parties

seem to agree that some "purpose" test must be, or has been, added on to the statute

to construe it properly.

In this case, the Court of Appeals described the applicable "purpose" test as

follows: "an organization must have as its primary purpose, or one of its primary

27 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

purposes, to affect, directly or indirectly, governmental decision making by

supporting or opposing candidates or ballot propositions." Utter, 176 Wn. App. at

657 (emphasis added) (citing Dan J Evans, 86 Wn.2d at 509). It explicitly declined

to address BIAW's contention that this "one of its primary purposes" test violates

the First Amendment. Id. at 654 n.4.

The Court of Appeals correctly determined-in dicta-that the numerous

statements made by BIAW officials and submitted as evidence by plaintiffs raised a

question of fact as to whether a primary purpose of the BIAW was to elect Dino

Rossi. But the evidence does not appear to raise a question of fact as to whether that

was the primary purpose of BIAW-BIAW existed long before the 2007-2008

campaign season and has many other purposes. See, e.g., CP at 153 (declaration of

Tom McCabe, former BIAW officer, stating that BIAW's main purposes are

"membership and education"). So we cannot resolve the issue of whether there is a

question of fact without determining the correct test first.

BIAW argues that permitting regulation based on a primary purpose of the

entity being the support or opposition of a "candidate or . . . ballot proposition,"

RCW 42.17A.005(37), as opposed to the primary purpose of that entity, is

unconstitutional under Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659

(1976) (per curiam). Specifically, BIAW argues that defining "political committee"

to include organizations with "a" primary purpose of supporting a candidate rather

28 Utter et al. v. Bldg. Indus. Ass'n of Wash., No. 89462-1

than "the" primary purpose of supporting a candidate violates the First Amendment

to the United States Constitution because it chills political speech. Plaintiffs, for

their part, would also read some "purpose" test into the statute-they cite the "a"

primary purpose test first stated by this court in Dan J. Evans and then adopted by

the Court of Appeals in EFF, in both cases without discussion of any constitutional

implications. BIA W relies on a Fourth Circuit case adopting the "the primary

purpose'.' test to satisfy First Amendment concerns, N.C. Right to Life, Inc. v. Leake,

525 F.3d 274, 289 (4th Cir. 2008). BIAW's Suppl. Br. at 14-15. Plaintiffs point

out, however, that the exact argument BIAW makes was rejected by the Ninth

Circuit two years later in Human Life of Washington Inc. v. Brumsickle, 624 F.3d

990 (9th Cir. 2010). That case specifically addressed what it perceived as

Washington's "a primary purpose" test and concluded it did not violate the First

Amendment: "We disagree with Human Life's reading of Buckley, and we reject its

invitation to adopt a bright-line rule prohibiting all regulation of groups with 'a'

primary purpose of political advocacy." Brumsickle, 624 F.3d at 1009. Brumsickle

and Leake thus represent a circuit split on this issue.

There is likely no question of fact about whether the primary purpose of

BIAW is to support candidates or initiatives. Thus we must decide whether to

expressly approve the purpose test we first enunciated, though arguably as dicta, and

certainly without considering the constitutional implications, in Dan J. Evans-that

29 Utter eta!. v. Bldg. Indus. Ass'n ofWash., No. 89462-1

the support of a candidate or initiative must be "the primary or one of the primary

purposes" of a person expending funds for the State to subject them to regulation as

a political committee based on their expected expenditures. 86 Wn.2d at 509

(emphasis omitted).

Seven circuits have addressed this question. Brumsickle, as noted above,

considered the question in the context of Washington law. It applied the "exacting

scrutiny" standard of review mandated by Buckley, 424 U.S. at 16, and Citizens

United v. Federal Election Commission, 558 U.S. 310, 366-67, 130 S. Ct. 876, 175

L. Ed. 2d 753 (2010), for evaluating the constitutionality ofthe campaign disclosure

(as opposed to contribution or expenditure limit) statutes, ruled that there was a

substantial relationship between Washington's "informational interest and its

decision to impose disclosure requirements on organizations with a primary purpose

of political advocacy," and approved of what it perceived as our "a" primary purpose

test. Brumsickle, 624 F .3d at 1009-11. Brumsickle was followed by the First Circuit

in National Organization for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011).

That court stated that endorsement of the "the" primary purpose test could "yield

perverse results" because

"a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a [political action committee (PAC)]. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register

30 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

because the defeat of that candidate could not be considered the corporation's major purpose."

Id. (quoting Nat'l Org. for Marriage v. McKee, 723 F.Supp.2d 245, 264 (D. Me.

201 0) ). The Seventh Circuit agreed with Brumsickle and McKee and held that state

campaign disclosure laws are not overbroad for lacking "the major purpose" test.

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 491 (7th Cir. 2012). And,

most recently, the Second Circuit followed suit, stating, "We join the Circuits that

have considered PAC definitions in this context after Citizens United and hold that

the Constitution does not require disclosure regulatory statutes to be limited to

groups having 'the major purpose' of nominating or electing a candidate." Vt. Right

to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 136 (2d Cir. 2014). Thus, four of the

seven circuits that have addressed the question have found that state disclosure

requirements need not be limited to organizations with "the" major (or primary)

purpose of electioneering to comply with the First Amendment.

The Eighth Circuit has not directly answered the question, but it has

recognized the circuit split and appears to engage in a sort of balancing test. It has

held that "the major purpose" of an organization is an "important consideration" in

determining the extent of permissible regulation. Iowa Right To Life Comm., Inc. v.

Tooker, 717 F.3d 576, 592 (8th Cir. 2013). It also found, however, that some

31 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

regulation is permissible without "[the] major purpose" test, depending on the type

and extent of regulation. I d. at 594.

The Fourth and Tenth Circuits have rejected state disclosure requirements that

lack "the major purpose" test. The Tenth Circuit, though, does not appear to

distinguish between a test that uses "a" major purpose and one that uses "the" major

purpose. See Colo. Right To Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155 (lOth

Cir. 2007) (referring to legislation that used the phrase "a major purp?se" as

including "the very 'major purpose' test at issue"). Thus it appears that only the

Fourth Circuit has unequivocally rejected a state law that requires "a" primary

purpose of electioneering rather than "the" primary purpose to subject a

campaigning entity to filing and disclosure requirements. Leake, 525 F.3d at 287

("the importance the plaintiffs attach to the definite article is correct"). Since Leake

was decided, the First, Second, Seventh, and Ninth Circuits have rejected its

reasonmg.

We agree with the majority of circuits that have addressed this issue. As

discussed, the statutory definition of "political committee" contains no limitation

regarding the purpose of such a committee. Reading some stringent purpose

requirement, like the "a" primary purpose test, into our statute is necessary to satisfy

First Amendment concerns. Adopting the even more stringent "the" primary

purpose test, however, would likely contravene the intent of the voters to extend the

32 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

reach of this state's filing and disclosure requirements as much as possible and is not

necessary to satisfy the First Amendment. Brumsickle, 624 F.3d at 1009.

Additionally, Washington courts have previously espoused an "a" primary purpose

test. Dan J. Evans, 86 Wn.2d at 509; accord EFF, 111 Wn. App. at 598-99.

b. Plaintiffs Have Raised a Genuine Issue of Fact under Washington's "a" Primary Purpose Test

The plaintiffs have established a question of fact as to whether BIAW had the

support of a candidate as one of its primary purposes during the 2007-2008 campaign

season. For example, the plaintiffs submitted BIAW board of director meeting

minutes stating that "BIAW' s number one priority this campaign season would be

to help Rossi get elected." CP at 608. A letter from BIA W's 2008 president Brad

Spears to BIAW members whose memberships were about to expire states that

"BIAW is putting forth the largest political effort in the entire history of the

association 'to re-elect' Dino Rossi as governor." CP at 406. Minutes of a local

association's directors' meeting state, "On behalf of BIAW, Brad Spears spoke to

the Board [and] talked about how we have a Governor who is unfriendly to our

industry .... BIA W has decided that with this scenario all of our efforts for the next

two years need to be expended on electing a new Governor in 2008." CP at 418-19.

And an issue ofBIA W's newsletter, Building Insight, contains an article titled "An

33 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

Open Letter to all [Master's Building Association] Members from BIA W Senior

Officers," which states:

As the Building Industry Association of Washington's (BIAW) 2008 Senior Officers, it is a pleasure and an honor to serve as the leaders of this great association. Our primary goal this year has been to unify BIAW members and local associations behind a coordinated, all out effort to elect Dino Rossi as Governor . . . . BIAW is running an aggressive and truthful campaign to elect Dino. It is our hope and desire that you will join us in this endeavor and encourage your local association (MBA of King and Snohomish Counties) to actively participate with us to achieve this goal.

CP at 368 (emphasis added).

BIAW argues that all the statements by BIAW officers about BIAW were in

fact statements in their capacities as BIAW-MSC officers about BIAW-MSC. We

discussed this argument above; it is an argument for the trier of fact. The BIAW

officer declarations saying that BIAW's main purposes are "membership and

education," CP at 153, are not sufficient to support a grant of summary judgment in

light of the plaintiffs' evidence.

B. The Decision in WBBT Does Not Collaterally Estop BIA W from Denying That It Owns the Funds at Issue Here

The parties argue about whether a recent case, In re Washington Builders

Benefit Trust, 173 Wn. App. 34, 45, 293 P.3d 1206 (WBBT), review denied, 177

Wn.2d 1018 (2013), conclusively proves thatBIAW owned the ROil funds that were

handled through BIAW-MSC's accounts. WBBT concerned a trust established by

34 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

BIAW, the Washington Builders Benefit Trust, for the purpose of holding and

investing the ROil funds BIAW got from L&I under its retro program. The WBBT

case is extremely complicated and involved complaints by participants in the retro

program that BIAWand BIAW-MSC, trustees of the trust, were "retaining interest

earned on deposited funds, commingling funds, and failing to provide statutorily

required accountings" as well as "violat[ing] their fiduciary duties under the trust

agreement in expending funds earmarked for marketing and promotion of the plan."

WBBT, 173 Wn. App. at 43. Part of the case involved determining what

organizations controlled the funds that were supposed to go into the trust and when

they controlled them. WBBT found, for example, that "[i]n July of each year, the

BIAW-Member Services Corporation transferred an additional 10 percent

marketing assistance fee to its money marketing accounts, which fee was distributed

to BIAW." !d. at 50-51.

The plaintiffs argue that BIAW is collaterally estopped from denying it owns

the funds at issue here because that issue was litigated in WBBT and BIAW lost.

But, as BIAW points out, a prerequisite to application of collateral estoppel is that

the identical issue was litigated. BIAW is correct that the issue in WBBT is not

identical to the issue here: who controls funds for purposes of determining whether

a trustee violated fiduciary duties or contractual obligations is not the same issue as

who expended or expected to expend funds for political committee registration

35 Utter eta!. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

purposes. In addition, in the absence of collateral estoppel, plaintiffs cannot rely on

WBBT to create an issue of fact any more than BIAW can rely on the PDC

investigation to argue that there is no issue of fact.

C. We Do Not Reach BIAW'S Argument That Reporting Requirements for Political Committees Would Be Unconstitutionally Onerous as Applied to BIAW

BIAW argues that the reporting requirements for political committees would

be unconstitutionally onerous as applied to BIAW if it were considered a "political

committee."

As discussed above, BIAW is correct that political committee registration

requirements are subject to "exacting scrutiny." Brumsickle, 624 F .3d at 1005

(citing Citizens United, 558 U.S. at 366-67). Under exacting scrutiny, the question

of whether any applicable registration requirements, as applied to BIAW during any

relevant time period, would have resulted in an unconstitutionally onerous burden

involves a strong factual component-it would require a court to address the specific

reporting requirements and balance the burden of the disclosure requirements for the

specific time period in that particular case against the government's interest in

providing the public with campaign finance information. See Brumsickle, 624 F .3d

at 1008, 1013. We do not have a sufficient factual record to determine whether any

applicable reporting requirements as applied to BIAW at the relevant time would

have been onerous or would have been substantially related to the government's

36 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

interest, nor have the parties briefed this issue in depth. This constitutional issue is

thus not ripe for review.

D. The ''Attribution" Statute Applies Only to Aggregate Contributions and Not to the Definition of "Political Committee"

Plaintiffs argue that the FCPA permits automatic attribution of contributions

or expenditures by one organization to a parent or controlling organization for

purposes of defining a "political committee." BIAW argues that the FCPA permits

such automatic "attribution" only for purposes of contribution limits and not for

purposes of determining whether an organization has received contributions or made

expenditures that require it to register as a political committee. 10

The plaintiffs rely mainly on just one sentence from RCW 42.17A.455, which

states, in relevant part:

For purposes of this chapter: ... All contributions made by a person or political committee whose contribution or expenditure activity is financed, maintained, or controlled by a trade association, labor union, collective bargaining organization, or the local unit of a trade association, labor union, or collective bargaining organization are considered made by the trade association, labor union, collective bargaining organization, or local unit of a trade association, labor union, or collective bargaining organization.

10 The following organizations have submitted an amici briefing in support of BIA W's argument on this particular point: Washington State Labor Council, SEIU Healthcare 775NW, UFCW 21, Washington Education Association, SEIU Healthcare 1199NW, and SEIU Local 925. 37 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

RCW 42.17 A.455(2). The plaintiffs assert that this statute applies to the definition

of "political committee"-"any person ... having the expectation of receiving

contributions or making expenditures in support of, or opposition to, any candidate

or any ballot proposition." RCW 42.17 A.005(37). "'Expenditure' includes a ...

contribution." RCW 42.17 A.005(20). Thus, plaintiffs argue that since "[a]ll

contributions made by a person or political committee whose contribution or

expenditure activity is ... controlled by a trade association ... are considered made

by the trade association," RCW 42.17 A.455(2), if BIAW-MSC made contributions

or expenditures and plaintiffs show BIAW controlled BIAW-MSC, then all of

BIAW-MSC's contributions or expenditures are automatically attributed to BIAW.

Plaintiffs' argument is largely based on the fact that RCW 42.17 A.455 begins, "For

purposes of this chapter" and the "chapter" is all of chapter 42.17 A RCW. They

point out that there is no good reason to apply this "attribution" statute only to

contribution limits, except that it would be very inconvenient for the defendants.

BIAW counters that the attribution statute does not apply to the definition of

"political committee" but only to limits on campaign contributions. BIAW points

out that the statute at issue was created by a citizens' initiative 20 years after the

definition of "political committee" was codified (also as a result of a citizens'

initiative), and that the text of the initiative in the voter's pamphlet gave no indication

that the initiative was intended to expand registration obligations. Rather, BIAW

38 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

argues, the initiative was labeled "AN ACT Relating to the regulation of political

contributions and campaign expenditures." LAWS OF 1993, ch. 2, § 1 (Initiative

Measure No. 134, approved Nov. 3, 1992). Part III of the initiative, where the

attribution rule appears, is labeled "CONTRIBUTIONS." Id. § 4. And the other

sections in Part III address contribution limits, not reporting requirements. Further,

BIAW argues that the legislation contains a statement of the voters' intent (which

also appeared in the language of the initiative}:

(2) By limiting campaign contributions, the people intend to:

(a) Ensure that individuals and interest groups have fair and equal opportunity to influence elective and governmental processes;

(b) Reduce the influence oflarge organizational contributors; and

(c) Restore public trust in governmental institutions and the electoral process.

RCW 42.17 A.400 (emphasis added). 11

The Court of Appeals agreed with the BIAW that the attribution statute did

not apply to the definition of "political committee" but only to caps on campaign

11 BIA W also contends that our court has acknowledged that the attribution statute was intended to apply to contribution limits, not to the determination of who is a "political committee." We did state that "[RCW 42.17A.455] specifies a relationship between entities in which those entities are considered a single entity for purposes of campaign contribution limits." Edelman v. State ex rel. Pub. Disclosure Comm 'n, 152 Wn.2d 584, 590, 99 P.3d 386 (2004) (emphasis added). However, that statement was likely dicta-the court in Edelman was not presented with the question whether the attribution statute could apply outside the campaign contribution limits context.

39 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

contributions. The Court of Appeals and BIAW rely heavily on American Legion

Post No. 149 v. Washington State Department of Health, 164 Wn.2d 570, 192 P.3d

306 (2008), to reach this conclusion. In American Legion, this court ignored a

statutory provision resulting from an initiative that stated that the statute applied to

"'[t]his chapter."' Id. at 586-91 & n.7. But we held that the phrase did not mean

what it said because "such a reading would eviscerate much of the [Smoking in

Public Places] Act[, ch. 70.160 RCW,] and interfere with the express intent of the

voters." !d. at 588-89. Those are strong words. And even so, there was a vigorous

dissent signed by several justices arguing that "this chapter" is entirely

unambiguous. Id. at 637 (J.M. Johnson, J., dissenting). By contrast, applying the

attribution statutes to the definition of "political committee" would not eviscerate

the FCPA or interfere with the express intent of the voters to "(a) [e]nsure that

individuals and interest groups have fair and equal opportunity to influence elective

and governmental processes; (b) [r]educe the influence of large organizational

contributors; and (c) [r]estore public trust in governmental institutions and the

electoral process." RCW 42.17 A.400(2).

Nevertheless, the bulk of the textual analysis supports BIAW's argument. The

initiative's statement of intent declares that the people intend to accomplish the goals

of the initiative "[b]y limiting campaign contributions." RCW 42.17 A.400(2). The

initiative itself contains no indication that it would impose expanded reporting

40 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

requirements related to the definition of "political committee," and the sections

surrounding the attribution section all relate to limits on making contributions.

Further, a comparison of the definition of "political committee" in RCW

42.17 A.005(37) with the attribution rule in RCW 42.17 A.455 reveals that the two

statutes are difficult to reconcile if they are supposed to apply to each other. For

example, a political committee has an expectation of "receiving contributions or

making expenditures," RCW 42.17 A.005(3 7) (emphasis added), while a

"contribution made by" a person can be considered "made by" a controlling entity

under RCW 42.17 A.455(2) (emphasis added). Political committees are defined by

making expenditures, not making contributions. Cross-referencing is cumbersome,

if not impossible. This favors BIAW' s argument that the statutes were never

intended to be read together.

Finally, plaintiffs' proposed interpretation poses constitutional problems. As

discussed above, Brumsickle upheld Washington's disclosure laws on the ground

that they satisfy the First Amendment's exacting scrutiny test, which examines

whether the law's requirements "are substantially related to a sufficiently important

governmental interest." Brumsickle, 624 F.3d at 1005. Washington's disclosure

laws are constitutional on their face because they serve an important government

interest and use a narrowly tailored means that does not force overburdensome or

duplicative reporting. !d. at 1013. If we interpret the second sentence of RCW

41 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

42.17A.455(2)-the attribution rule-to apply to the definition of "political

committee," then that definition of "political committee" is no longer narrowly

tailored. A union or trade organization with "a" primary purpose of electioneering,

which never received or expected election "contributions" itself but did speak freely

to its members about how to vote, could nevertheless become subject to the

disclosure requirements. Such an application of the attribution statute would

significantly broaden the definition of "political committee" and thus would

arguably flunk the First Amendment test under not just Brumsickle but also Buckley

(upon which Brumsickle is based).

We construe statutes to avoid constitutional doubt. State v. Robinson, 153

Wn.2d 689,693-94, 107 P.3d 90 (2005). This interpretive principle of constitutional

avoidance mandates that we choose the interpretation of the attribution rule that

limits its applicability to aggregation of contributions. That resolution avoids any

constitutional problem and also comports with the stated intent of the voters and the

statutory scheme as a whole. 12

CONCLUSION

12 Plaintiffs briefly make the same argument about another "[a]ttribution" statute, RCW 42.17 A.460. (Boldface omitted.) But that statute does not include the language "for the purposes of this chapter." Without that language, the plaintiffs' argument is significantly less convincing than the one we rejected above, and we therefore reject that one as well. 42 Utter et al. v. Bldg. Indus. Ass 'n of Wash., No. 89462-1

We (1) hold that the PDC's investigation did not preclude the plaintiffs'

citizen suit because the AG's referral of the plaintiffs' complaint to the PDC did not

"commence an action" within the meaning of the citizen suit statute, (2) hold that

the plaintiffs have presented evidence sufficient to raise a genuine issue of material

fact as to the contribution prong of the "political committee" definition, (3) adopt

the version of the "primary purpose" test that includes organizations that have the

support of a candidate or initiative as "one of' their primary purposes and hold that,

consequently, the plaintiffs have presented evidence sufficient to raise a genuine

issue of material fact as to the expenditure prong of the "political committee"

definition, (4) hold that the WBBT case does not collaterally estop BIAW from

denying ownership of the funds at issue, ( 5) decline to reach the constitutional

"onerous burden" issue, which is not ripe for review, and (6) hold that the so-called

"attribution" rule applies only to contribution limits and not to the determination of

who is a "political committee." We reverse the Court of Appeals and remand this

case for further proceedings in the superior court.

43 Utter ex rel. State v. BIAW, No. 89462-1

WE CONCUR:

44 Utter, et al. v. Bldg. Indus. Ass 'n of Wash.

No. 89462-1

MADSEN, C.J. (concurring/dissenting)-! agree with the majority that the

attorney general's (AG) referral of the plaintiffs complaint to the Public Disclosure

Commission (PDC) did not "commence an action" within the meaning of the citizen suit

statute, RCW 42.17A.765(4). Nevertheless, in my view, neither reversal of summary

judgment nor further proceedings are warranted in this case because the AG's

commencement of a lawsuit against Building Industry Association of Washington's

(BIA W) nonprofit arm precludes a further citizen suit against BIA W under RCW

42.17A.765(4)(a)(i) and because the PDC's determination resolves any fact question

regarding BIA W' s culpability. I would affirm the trial court's grant of summary

judgment.

Discussion

The Fair Campaign Practices Act (FCP A), chapter 42.17 A RCW, imposes

specified reporting obligations on "political committees," as defined by RCW

42.17 A.005(3 7) (discussed below). The task of enforcing those campaign disclosure

requirements falls primarily to the State. See, e.g., RCW 42.17A.755 (authorizing the

PDC to investigate alleged violations, initiate administrative enforcement proceedings, No. 89462-1 Madsen, C. J. concurring/ dissenting

and levy fines not to exceed $10,000), .750(2) (authorizing the PDC to refer violators for

criminal prosecution), .765(1)-(3) (authorizing the AG and other prosecuting authorities

to investigate and bring civil enforcement actions). The act also grants limited

enforcement powers to citizens under the citizen suit provision, RCW 42.17 A.765(4).

That provision, however, precludes citizens from filing a civil lawsuit unless the "[t]he

attorney general and the prosecuting attorney have failed to commence an action

hereunder" and "have in fact failed to bring such action" within the statutory time

periods. RCW 42.17 A.765( 4)(a)(i), (iii).

The following relevant facts are undisputed. BIA W is a statewide nonprofit trade

association representing the interests of local building association members. BIA W-

Member Services Corporation (BIAW-MSC) is a wholly owned subsidiary ofBIAW and

is a for-profit corporation formed by BIA Win 1993 to run the Return on Industrial

Insurance Program 1 for BIAW members. BIAW and BIAW-MSC share the same staff

and officers, and such personnel commonly refer to both entities by the generic shorthand

"BIA W." Following an "exhaustive"2 investigation by the PDC, prompted by plaintiffs'

claims that BIA W and its subsidiary were violating the FCPA, the PDC issued a report

finding only that a discrete portion of the funds handled by BIA W-MSC within the 2007-

2008 election cycle fell within FCPA reporting requirements; the report otherwise

exonerated the BIAW organization. Based on that report, the AG commenced suit

1 BIAW-MSC manages and processes BIAW members' Department of Labor and Industries overpayment refunds, referred to as the ROil or "retro" program. Clerk's Papers (CP) at 175. 2 Plaintiffs described the PDC's investigation to the trial court as "exhaustive." CP at 215 (Pl.'s Opp. To Mot. for Summ. J. at 4).

2 No. 89462-1 Madsen, C.J. concurring/dissenting

against BIAW-MSC for violation of the FCPA. Thereafter, the plaintiffs filed a citizen's

suit against BIAW for violations of the FCPA. The trial court granted BIA W' s summary

judgment motion, and the Court of Appeals affirmed, holding that the plaintiffs' citizen

suit is barred because the AG commenced "an action" precluding a citizen suit when the

AG forwarded the plaintiffs' letter to the PDC for investigation. Utter v. Bldg. Indus.

Ass'n ofWash., 176 Wn. App. 646,674,310 P.3d 829 (2013).

The majority reverses the Court of Appeals and holds that "RCW 42.17 A.765

precludes a citizen suit only where the AG or local prosecuting authorities bring a suit

themselves, and it does not preclude a citizen suit where the AG declines to sue."

Majority at 13 (emphasis added). In so holding, the majority relies on the plain language

of the citizen suit statute, which provides in relevant part "[a] person ... may ... bring

... a citizen's action ... only if .. . [t]he attorney general and the prosecuting attorney

have failed to commence an action hereunder within forty-five days after the [specified]

notice." RCW 42.17A.765(4)(a)(i) (emphasis added); see also majority at 8. This

provision "seeks to give private citizens ... the right to enforce the Act only if the state

has not acted." State ex rel. Evergreen Freedom Found. v. Wash. Educ. Ass 'n, 111 Wn.

App. 586, 608, 49 P.3d 894 (2002) (EFF I) (emphasis added); see also State ex rel.

Evergreen Freedom Found. v. Nat'! Educ. Ass 'n, 119 Wn. App. 445, 453, 81 P.3d 911

(2003) (EFF II) (noting that the "clear intent" of the citizen's suit statute is that "the AG

or county prosecutor's 'commencement of an action' within the proscribed time period

precludes a citizen's action").

3 No. 89462-1 Madsen, C.J. concurring/dissenting

Here, the AG did commence a timely lawsuit against BIAW, via its for-profit

subsidiary. The AG filed that lawsuit on the basis of the PDC determination that BIA W-

MSC qualified as a political committee and had failed to comply with the reporting

requirements of the PCPA. 3 Accordingly, the AG filed suit against the BIA W subsidiary

that the PDC's investigation found to be culpable.

In this circumstance, we should defer to the PDC' s findings because of its

expertise in this area and particularly because of the PDC's fact-finding role, in which it

weighed and evaluated conflicting evidence, in reaching its determination that only the

BIA W subsidiary, BIA W-MSC, qualified as a political committee. "[S]ubstantial

judicial deference to agency views [is] appropriate when an agency determination is

based heavily on factual matters, especially factual matters which are complex, technical,

and close to the heart of the agency's expertise." Hillis v. Dep 't of Ecology, 131 Wn.2d

373, 396, 932 P.2d 139 (1997). '"[I]t is well settled that due deference must be given to

the specialized knowledge and expertise of an administrative agency.'" Port of Seattle v.

Pollution Control Hr 'g's Bd., 151 Wn.2d 568, 595, 90 P.3d 659 (2004) (alteration in

original) (quoting Dep 't of Ecology v. Pub. Utility Dist. No. 1 of Jefferson County, 121

Wn.2d 179,201, 849 P.2d 646 (1993), aff'd, 511 U.S. 700, 114 S .Ct. 1900, 128 L. Ed.

3 The PDC concluded that "[ d]uring 2006-June 2008, BIAW did not solicit or receive contributions to support or oppose candidates or ballot propositions, nor did it contribute to candidates or political committees or use its general treasury for other campaign-related expenditures." CP at 57 (emphasis omitted). The PDC further determined that "the solicitation, receipt, and retention of local association Retro program refunds by BIAW -MSC in the amount of $584,527.53" for campaign purposes qualified BIAW-MSC as a political committee, triggering reporting requirements for the noted funds. CP at 59.

4 No. 89462-1 Madsen, C.J. concurring/dissenting

2d 716 (1994)). "In the course of judicial review, due deference will be given to the

specialized knowledge and expertise of the administrative agency." English Bay Enters.,

Ltd. v. Island County, 89 Wn.2d 16, 21,568 P.2d 783 (1977); Schuh v. Dep't of Ecology,

100 Wn.2d 180, 187,667 P.2d 64 (1983) (same); see also Cashmere Valley Bank v. Dep't

of Revenue, 181 Wn.2d 622, 634-37, 334 P.3d 1100 (2014) (agency determination is not

binding on this court, but its adjudicatory action is generally granted some deference;

considerable deference given to interpretation by agency charged with enforcing statute;

we accord deference to an interpretation oflaw in matters involving the agency's special

knowledge and expertise); see also PT Air Watchers v. Dep 't of Ecology, 179 Wn.2d 919,

925, 319 P.3d 23 (2014) (burden of demonstrating the invalidity of agency action is on

the party asserting invalidity; this court affords deference to agency's interpretation of the

law where agency has specialized expertise in dealing with such issues, but this court is

not bound by an agency's interpretation of statute; board's order should be upheld unless

we find that the board erroneously interpreted or applied the law or the board's order is

not supported by substantial evidence).

Because the AG filed suit against the BIAW subsidiary determined by the PDC

experts to be culpable, the plaintiffs cannot now file a citizen's suit against a different

part of that same organization. Restated, because the AG has not "failed to commence a

[timely] action" against BIAW, via that organization's culpable subsidiary, the plaintiffs'

citizen suit against the BIAW parent association is barred. RCW 42.17A.765(4)(a)(i);

5 No. 89462-1 Madsen, C.J. concurring/ dissenting

see also EFF I, 111 Wn. App. at 608; EFF II, 119 Wn. App. at 453. For this reason

alone, summary judgment to BIA W should be affirmed.

Even if the AG has not acted sufficiently against BIAW to bar suit under RCW

42.17 A.765( 4)(a)(i), we should nevertheless sustain the grant of summary judgment. I

disagree with the majority's view that summary judgment is inappropriate because a fact

question exits regarding whether BIA W qualified as a "political committee" 4 under the

FCPA. Majority at 14. The majority holds that the plaintiffs' evidence, which names

"BIA W" as soliciting pledges from its local associations, raises a question of fact

regarding whether BIA W had an expectation of receiving contributions and making

political expenditures. !d. at 18-21, 24-25. The majority's analysis relies one-mails and

local building associations' meeting minutes indicating that pledges were solicited for

and made to "BIA W." !d. at 19-20.

This is not a case where there has yet to be a weighing of evidence and

determination of witnesses' credibility. Such determination and fact-finding has already

been performed by the PDC, the agency created by and charged with enforcing the

FCPA. See RCW 42.17A.l00 (establishing the PDC), .105 (describing the duties of the

PDC); see also EFF I, 111 Wn. App. 586, 606. The FCPA empowers the PDC to

"investigate ... apparent violations of [the FCPA]" upon complaint or its own motion

and to "[e]nforce [the FCPA] according to the powers granted it by law." RCW

4 The PCP A defines "political committee" as "any person (except a candidate or an individual dealing with his or her own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition." RCW 42.17 A.005(3 7) (emphasis added).

6 No. 89462-1 Madsen, C.J. concurring/dissenting

42.17 A.1 05(5), (8). Powers granted to the PDC include, but are not limited to, the

authority to "(a) determine whether an actual violation of this chapter has occurred; and

(b) issue and enforce an appropriate order following such a determination." RCW

42.17A.755(1). In lieu of issuing such order, the PDC may refer the matter to the AG.

RCW 42.17A.755(3).

In its report, the PDC noted "Examples of Solicitation by BIAW-MSC," which

included e-mails and minutes from local builders associations. Clerk's Papers at 67

(emphasis added and omitted). The report explained, "The emails demonstrate that these

[local] associations responded to BIA W-MSC solicitation and agreed to donate a portion

oftheir Retro program refund for use in the 2008 Governor's campaign." !d. Excerpts

from the report noted as follows:

Joel White, Executive Officer of the Spokane Home Builders Association: Mr. White stated in part in his July 2, 2007 e-mail: "Our Board of Directors authorized BIA W to keep any proceeds from the ROil program over the $275,000 we budgeted in 2007 to be used for the Governor's race in 2008 "

Bill Quehrn, Building Industry Association ofWhatcom County: Mr. Quehrn stated in part in his July 11, 2007 e-mail: "The vote was to allow BIA W to withhold $10,000 for our current check ... The enthusiasm over another shot at the governor's office by Dino was unanimously welcomed."

!d. (emphasis added and omitted) (alterations in original). The PDC report further noted:

Jeff Danks, Controller for the Master Builders Association of King & Snohomish Counties (MBA-K&S) confirmed in an e-mail:

"I was present at the board meeting when Mr. Doyle made his solicitation to the [MBA-K&S]. The [MBA-K&S] was asked to agree to give back to BIA W any amount for the 2007 ROil refund

7 No. 89462-1 Madsen, C.J. concurring/dissenting

above what was originally expected and that money was to be used for the 2008 Governor's race."

!d. (emphasis added and omitted). The PDC report also gave an example of a local board minute entry stating:

The April30, 2007 Minutes of the MBA-K&S Board of Directors meeting state that BIA W President Daimon Doyle was in attendance and provided information about the 2007 Legislative Session. The minutes also state:

"Daimon then went on to explain the reason he was in attendance, which was to ask the Association to donate the excess proceeds of the ROil return to BIAW's election fund to support a gubernatorial candidate in 2008. He discussed fundraising for the upcoming election year 2008, and stated that the senior officers introduced a resolution asking each of the 15 locals to donate the excess retro funds beyond what they budgeted to the gubernatorial fund."

!d. (emphasis added and omitted).

As can be seen, the PDC had before it the same type of evidence that the majority

now says creates a fact question: e-mails and meeting minutes identifying "BIA W" as

soliciting funds. But the PDC considered that evidence in context and as fact-finder

weighed the evidence, determined the credibility of witnesses and resolved the fact

question in rendering its decision. 5 The evidence supports the PDC's factual

determinations, and there is no indication that the PDC misapplied any portion of the

5 Although thee-mails and minute entries identified "BIA W," the PDC concluded that the solicitations were in fact made by BIAW-MSC. See CP at 57, 59, 67, 69, 77. In so deciding, the PDC conducted "interviews under oath" ofBIA Wand BIAW-MSC personnel, and additionally considered revenue reports of BIA W and BIA W-MSC and declarations by BIAW and BIAW- MSC officers, administrators, and staff. CP at 76.

8 No. 89462-1 Madsen, C. J. concurring/dissenting

FCPA. 6 We should defer to the PDC's determination that BIAW does not qualify as a

political committee under the FCP A.

Finally, I disagree with the majority's view that the PDC report does not warrant

our deference under the circumstances of this case. First, the PDC report is properly

before us for consideration. In conducting our de novo review of the trial court's grant of

summary judgment to BIA W, we consider the record that was before the trial court. 7

Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of

Eagles, 148 Wn.2d 224, 253, 59 P.3d 655 (2002). Here, the PDC report was before the

trial court without objection, it was argued by the parties during the summary judgment

proceedings, and it was considered by the trial court in granting the summary judgment

motion. Accordingly, it is proper for us to give due consideration to the PDC report.

Next, the majority says that (1) we should not defer to the PDC report to the extent

that the PDC is applying the FCPA, majority at 24; (2) the PDC's factual determination

of the significance of the reference to "BIAW" in e-mails and other documents does not

6 The plaintiffs assert that the PDC investigation was "flawed" because the PDC "accepted at face value" BIAW's contention that BIAW-MSC, and not BIAW, controlled and handled the funds in question and solicited campaign contributions and made expenditures. Pet'rs' Reply to Pet. for Review and Response to Cross-Pet. for Review at 5. But it is the PDC's role as fact- finder to weigh the evidence and make determinations as it did here. We defer to such factual determinations. See Hillis, 131 Wn.2d at 396. 7 While the plaintiffs asserted to the trial court that the PDC had been duped and that the trial court was not bound by the "PDC's exercise ofprosecutorial discretion," there is no indication in the record that plaintiffs otherwise challenged the PDC report or objected to the report's admission and its consideration by the trial court. CP at 213. Plaintiffs first asserted that the PDC report was inadmissible in their reply brief to Division One. See Appellants' Reply Br. & Resp. to Cross-Appeal at 8. That is too late. State v. Chen, 178 Wn.2d 350, 358, 309 P.3d 410 (2013) (declining to address an argument raised for the first time in a reply brief); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issues first raised in reply are too late to warrant consideration).

9 No. 89462-1 Madsen, C.J. concurring/dissenting

warrant deference because this is not a complex or technical inquiry, majority at 24-25;

and (3) the PDC report was not an "agency determination [or action] to which courts

must defer." Majority at 25-26. I disagree.

In my view, we should defer to the PDC report in this circumstance because there

is no indication that the PDC in any way misapplied the FCP A. Nor is this a case in

which the PDC failed to act or acted ultra vires. As noted, the FCP A grants the PDC

authority to determine whether a violation of the FCPA has occurred and gives the PDC

the option of holding a hearing regarding such determination or referring the matter to the

AG. See RCW 42.17A.755(1)-(3). Here, the PDC referred the matter to the AG, who

filed suit against the only entity that the PDC determined to be culpable, the BIAW

subsidiary BIAW-MSC. This did not offend the FCPA and thus warrants our deference.

See Schuh, 100 Wn.2d at 187 (reversing where trial and appellate court failed to give

appropriate deference to agency expertise).

I also disagree with the majority's view that the PDC's resolution of conflicting

evidence in reaching its determination does not warrant our deference. The majority

oversimplifies the fact inquiry at issue as involving only who is identified by the term

"BIA W" appearing in e-mails and meeting minutes, contending that such inquiry is not

complex or technical and does not involve any particular agency expertise. Majority at

24-25. The point here is that the PDC's determination involved analysis of revenue

reports as well as the consideration of other evidence including declarations and

"interviews under oath" of organization personnel. See note 5, supra. That calculus,

10 No. 89462-1 Madsen, C .J. concurring/dissenting

which involved the assessment of financial materials, credibility determinations, and the

weighing of all such evidence, not only informed the PDC's determination of culpability

as to BIAW-MSC only, but reaching that determination necessarily resolved the question

of fact that the majority says is raised here by the reference to "BIA W" in the noted

documents. Under these circumstances, we should defer to the PDC's factual

determination. See Hillis, 131 Wn.2d at 396 Gudicial deference to agency views is

appropriate when an agency determination is based heavily on factual matters close to the

heart of the agency's expertise).

I also disagree with the majority's view that we can disregard the PDC report

because it does riot qualify as an "agency action." Majority at 26. As discussed above,

the PDC may determine violations of the FCPA, and has the option ofholding a hearing

or referring the matter to the AG. See RCW 42.17 A.755(1)-(3). The PDC pursued the

latter option, and the AG filed suit against BIAW-MSC, all in compliance with the

FCPA. Under the circumstances of this case, we should defer to the PDC report.

In sum, as discussed, the findings and determinations contained in the PDC report

required the PDC to weigh the evidence presented and draw upon its expertise in

reaching its conclusions. In doing so, the PDC determined that BIA W was not a political

committee, but BIAW's nonprofit subsidiary, BIA W-MSC, had engaged in conduct that

ran afoul of the f'CP A warranting referral to the AG for further action. The trial court

considered the PDC report and apparently deferred to it in granting BIA W's motion for

11 No. 89462-1 Madsen, C.J. concurring/dissenting

summary judgment. Such deference under the circumstances of this case was proper and

should be echoed by this court as well. See Hillis, 131 Wn.2d at 396.

The events in question that prompted the citizen inquiry in this case occurred the

better part of a decade and two election cycles ago. One plaintiff is now deceased. The

concern that prompted the citizen letter that started this process and the gravamen of the

citizen complaint has been addressed. The citizen letter to the AG was answered by a

thorough PDC investigation that otherwise exonerated BIAW, but found grounds for

further action against BIAW-MSC, which the AG pursued and which BIAW-MSC

settled. 8 While a citizen suit in this case against the BIA W nonprofit association is not

procedurally barred by the AG's action of forwarding the citizen inquiry to the PDC for

consideration, the AG's subsequent filing of a lawsuit against BIAW's for-profit

subsidiary renders an additional citizen suit against BIAW under RCW 42.17 A. 765(4)

unavailable under the facts of this case. Additionally, the PDC determination of the

factual question ofBIAW's culpability in my view renders further citizen action to

address that issue improper.

It is time for the parties to move on. In this case, the system (i.e. the statutory

scheme of the FCPA as interpreted and employed by the PDC and AG) has worked as

8 As part of that settlement, BIAW -MSC, the for-profit subsidiary of BIAW, agreed to register as a political committee and file all campaign finance disclosure reports to the PDC concerning campaign contributions it received in 2007; it agreed to pay hundreds of thousands of dollars in fines, and it agreed to pay hundreds of thousands of dollars more without court intervention in the event of any FCP A violation through 2016.

12 No. 89462-1 Madsen, C. J. concurring/dissenting

intended. Concerned citizens notified the proper authorities about questionable election

activity. The agency with expertise in this area investigated, determined culpability, and

recommended litigation action to the AG, which the AG pursued, resulting in settlement

and correction of the actions that prompted the citizen letter in the first place. In my

view, further litigation in this matter is not warranted. Judicial economy compels that we

affirm the trial court's grant of summary judgment.

13 No. 89462-1 Madsen, C.J. concurring/dissenting

I