IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ROBERT UTTER and FAITH IRELAND,
in the name of the STATE OF No. 66439-5-1
WASHINGTON, Consolidated w/66737-8-
Appellants,
ORDER GRANTING
RESPONDENT'S MOTION FOR
RECONSIDERATION, WITHDRAWING
OPINION FILED OCTOBER 29, 2012
AND SUBSTITUTING OPINION
BUILDING INDUSTRY ASSOCIATION
OF WASHINGTON,
Respondent.
On October 29, 2012, this court filed its unpublished opinion in the aboyg- ^
entitled action. Respondent/cross-appellant has moved for reconsideration. The ^
court has taken the matter under consideration and has decided to grant the rr^tioriB:
for reconsideration.
IT IS HEREBY ORDERED that the respondent/cross-appellant's motion for
reconsideration is granted;
IT IS FURTHER ORDERED that the unpublished opinion of this court filed in
the above-entitled action on October 29, 2012 be withdrawn and that the attached
published opinion be substituted in i^s plao
Dated this I\P^ day of
fex.J.
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ROBERT UTTER and FAITH IRELAND,
in the name of the STATE OF No. 66439-5-1
WASHINGTON, Consolidated w/No. 66737-8-1
Appellants,
DIVISION ONE
r/~\ — i
v.
cr>
BUILDING INDUSTRY ASSOCIATION PUBLISHED OPINION
OF WASHINGTON,
Respondent. FILED: September 16. 2013 CO
<£
Spearman, A.C.J. — Under the Fair Campaign Practices Act (FCPA),
chapter 42.17A RCW, political committees are subject to certain registration and
reporting requirements.1 An organization is considered 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." Evergreen Freedom
Found, v. Washington Educ. Ass'n. 111 Wn. App. 586, 599, 49 P.3d 894 (2002)
(EFF). These alternative means are the contribution prong and the expenditure
prong, respectively. Id. at 598. In 2008, Robert Utter and Faith Ireland brought a
citizen's action against the Building Industry Association of Washington (BIAW),
asserting that it met the definition of a political committee under the contribution
1While the parties' briefs refer to the former statutes, all references in our opinion are to
the recodified statutes as they appear in chapter 42.17A RCW.
No. 66439-5-1 Consolid. w/No. 66737-8-1/2
prong and the expenditure prong through its support for Dino Rossi's 2008
gubernatorial campaign. Therefore, Utter and Ireland claimed, BIAW violated the
FCPA by failing to register and report as a political committee. Before filing their
lawsuit against BIAW, Utter and Ireland sent a notice of intent to the Washington
State Attorney General's office (AG), stating that they would file a lawsuit against
BIAW and BIAW-MSC for violations of the FCPA if the State did not. The AG
referred the allegations to the Public Disclosure Commission (PDC) for
investigation. Based on the PDC's conclusions, the AG filed a lawsuit against
BIAW-MSC but did not file a lawsuit against BIAW.
On BIAW's motion for summary judgment, the trial court found there was
no genuine issue of material fact in dispute and dismissed Utter and Ireland's
lawsuit. It denied BIAW's request for attorney's fees. Utter and Ireland appeal
from summary judgment and BIAW cross-appeals the denial of attorney's fees.
We conclude that while the evidence creates an issue of material fact that BIAW
was a political committee under the expenditure prong, Utter and Ireland's claim
is barred by RCW 42.17A.765(4), where the AG caused their allegations to be
investigated, determined BIAW was not a political committee, and did not file a
lawsuit. Accordingly, we affirm. We also affirm the trial court's denial of attorney's
fees to BIAW and do not award fees on appeal.
FACTS
BIAW is a non-profit affiliate of the National Association of Home Builders
(NAHB), whose mission is to promote the common interests of Washington's
No. 66439-5-1 Consolid. w/No. 66737-8-1/3
building industry. It has approximately 13,500 members, primarily home builders.
Members first join and pay dues to one of BIAW's fifteen local associations
throughout the state, then automatically become members of BIAW and NAHB.
Among other activities, BIAW does advocacy work in all branches of government,
helps local associations recruit new members, runs an educational program, and
organizes conferences. BIAW's sources of revenue include membership dues,
income from interest and investments, health insurance fees, and fees from
educational programs.
In 1993, BIAW created a wholly owned, for-profit subsidiary, BIAW
Member Services Corporation (BIAW-MSC), to provide certain services to BIAW
members. BIAW-MSC's primary function is to administer a worker's
compensation insurance retrospective rating program ("retro program") pursuant
to Department of Labor and Industries' rules.2 BIAW-MSC generates revenue
from the retro program from an up-front enrollment fee and from a back-end,
incentive fee of 10 per cent of any refund earned by the program in a given year,
referred to as a Marketing Assistance Fee (MAF). BIAW-MSC also runs other
programs such as health insurance, life insurance, and educational seminars. It
contributes a portion ofits revenues to independent expenditures and to political
action committees (PACs), such as ChangePAC. BIAW and BIAW-MSC share
2MSC was created to "'reduce the risk of tax liability for BIAW... for administering a for-
profit retro program."' Retro programs allow members to pool their worker's compensation risks
and provide a chance for the pool to earn a refund of a portion of its premiums, when the group's
combined claims are less than its premiums. See Washington Administrative Code (WAC) 296-
17-90455.
No. 66439-5-1 Consolid. w/No. 66737-8-1/4
the same leadership and staff, with staff salaries allocated between the entities
based on the type of work performed. BIAW-MSC itself does not have any
members.
By spring 2007, one of BIAW's main efforts was supporting Rossi's 2008
gubernatorial campaign. As part of this effort, BIAW senior officers requested the
local associations to pledge excess MAF funds from their retro programs to
support the campaign. Senior officers drafted a "Rossi-lution" that 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
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.
Eleven of the fifteen local associations agreed to participate in this effort, which
ultimately raised $584,527.53.
On July 25, 2008 and September 9, 2008, in accordance with RCW
42.17A.765(4), Utter and Ireland sent notices of intent to the Washington State
Attorney General (AG), stating that they would file a lawsuit against BIAW and
BIAW-MSC for violations of the FCPA if the State did not. They claimed BIAW
was legally responsible for violations of the FCPA, even though the independent
expenditures in question were handled through the accounts of BIAW-MSC.
No. 66439-5-1 Consolid. w/No. 66737-8-1/5
The AG referred Utter and Ireland's allegations to the Public Disclosure
Commission (PDC), which completed an investigation and issued a report. The
PDC determined that BIAW-MSC requested permission from the local
associations to withhold a portion of the MAF funds and handled those portions
of the withheld funds. On August 20, 2008, BIAW-MSC contributed from its
general treasury fund $584,527.53—the amount raised from the MAF funds—to
ChangePAC and provided ChangePAC a list of the 11 local associations and the
amount contributed by each association. The next day, ChangePAC reported the
receipt of the contributions as coming from the local associations.
The PDC report concluded:
While [PDC] staff maintains the entire BIAW-MSC general fund
would not be considered a political committee, the solicitation,
receipt, and retention of local association Retro program refunds by
BIAW-MSC in the amount of $584,527.53 qualifies that discrete
portion of BIAW-MSC funds as a political committee pursuant to
[RCW42.17A.005(37)].
Based on the report, the PDC advised the AG that BIAW-MSC committed
"multiple apparent violations of [RCW 42.17A] by failing to register as a political
committee and report the contributions it solicited, received and retained from its
local associations in 2007, and by failing to report expenditures to ChangePAC in
2008 with the contributions received." The report concluded that BIAW was not a
political committee under RCW 42.17A.005(37). It found that during 2006 to
June 2008, BIAW did not solicit or receive contributions to support or oppose
candidates or ballot propositions, contribute to candidates or political committees,
No. 66439-5-1 Consolid. w/No. 66737-8-1/6
or use its general treasury for other campaign-related expenditures. Accordingly,
the report did not recommend action against BIAW.
On September 19, 2008, the AG filed a lawsuit against BIAW-MSC in
superior court, alleging that BIAW-MSC was required to register as a political
committee with respect to the MAF funds and to file PDC reports. The AG
alleged that BIAW-MSC conducted an illegal fundraising campaign and violated
RCW 42.17A.435 by concealing its solicitation and receipt of $584,527.53 in
campaign contributions toward 2008 electoral activities. BIAW-MSC and the AG
settled the lawsuit. As part of the settlement, BIAW-MSC agreed to file a political
committee registration form and campaign finance disclosure reports with the
PDC.
The AG did not file a lawsuit against BIAW. Utter and Ireland filed a
lawsuit against BIAW on October 6, 2008 and filed an amended complaint on
October 13. They claimed BIAW itself qualified as a political committee and was
therefore required to register and report.3 They asserted that although the
transfers and expenditures at issue were processed through BIAW-MSC
accounts, the evidence showed that BIAW "orchestrated the entire violation,
made all decisions, and the parties making the illegal donations believed they
were donating to the BIAW." They argued that the funds belonged to BIAW
and/or its members and that BIAW-MSC was a "mere conduit" for them.
3Utter and Ireland also claimed that BIAW exceeded the campaign contribution limits
under RCW 42.17A.405 and improperly coordinated with Dino Rossi. They voluntarily dismissed
that claim and it is not at issue on appeal.
No. 66439-5-1 Consolid. w/No. 66737-8-1/7
The BIAW filed a motion for summary judgment. The trial court granted
BIAW's motion, finding there was no genuine issue of material fact in dispute and
BIAW was entitled to judgment as a matter of law. Utter and Ireland appeal.
DISCUSSION
Utter and Ireland contend the evidence creates a genuine issue of material
fact that BIAW was a political committee under the contribution prong and the
expenditure prong. BIAW responds that the entire activity forming the basis of
Utter and Ireland's claims was conducted by BIAW-MSC. We agree with Utter and
Ireland that the evidence creates an issue of fact under the expenditure prong.
However, we conclude the AG's actions preclude Utter and Ireland's citizen
action.4
Summary Judgment
We review summary judgment decisions de novo, engaging in the same
inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788,
794-95, 64 P.3d 22 (2003). Summary judgment is proper if the pleadings,
depositions, answers, and admissions, together with the affidavits, show that
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). "When ruling on a summary judgment
motion, the court is to view all facts and reasonable inferences therefrom most
favorably toward the nonmoving party." Lvbbert v. Grant Countv. State of Wash.,
4 We decline to address BIAW's constitutional claims.
7
No. 66439-5-1 Consolid. w/No. 66737-8-1/8
141 Wn.2d 29, 34, 1 P.3d 1124 (2000) (citing Weyerhaeuser Co. v. Aetna Cas. &
Sur. Co.. 123 Wn.2d 891, 897, 874 P.2d 142 (1994)).
Under RCW42.17A.005(37), "political committee" includes any
organization that has "the expectation of receiving contributions or making
expenditures in support of, or opposition to, any candidate or any ballot
proposition." This definition contains two alternative prongs under which an entity
is considered a political committee: (1) the contribution prong and (2) the
expenditure prong. EFF, 111 Wn. App. at 599.
Contribution prong
Under the contribution prong, an organization is considered a political
committee if it expects to receive or receives contributions toward electoral goals.
EFF, 111 Wn. App. at 599. Utter and Ireland contend contemporaneous
documents show that BIAW solicited and received pledges, in the form of MAF
funds, from the local associations. For example, the "Rossi-lution" signed by
heads of the local associations refers to "BIAW" throughout. Documents from the
local associations refer to "BIAW" in discussing the local associations'
participation in the MAF fundraising effort and their decisions to pledge funds.
Other documents show that throughout the fundraising effort, senior officers
represented themselves as "BIAW senior officers" and BIAW president Daimon
Doyle signed correspondence seeking pledges as "BIAW President." Utter and
Ireland contend that BIAW was required to register within two weeks of having
8
No. 66439-5-1 Consolid. w/No. 66737-8-1/9
the expectation of receiving the pledges for MAF funds from the local
associations and was required to report the pledges when received.
BIAW does not dispute that pledges are treated as contributions under the
FCPA; rather, it disputes that it was the entity that expected to receive the
contributions at issue. It contends that BIAW-MSC received the withheld MAF
funds from the local associations and BIAW-MSC donated to ChangePAC. It
points out that the MAF funds are generated from a BIAW-MSC program and are
revenue to BIAW-MSC, not BIAW. As for the use of "BIAW" in the
contemporaneous documents, BIAW contends that while BIAW and BIAW-MSC
are legally separate entities with different functions, both are referred to internally
as "BIAW." It explains that when its board of directors or any officers direct
actions by "BIAW," BIAW and/or BIAW-MSC staffensures that the appropriate
entity _ whether BIAW or BIAW-MSC —actually carries them out to comply with
regulatory and tax obligations.
We conclude the evidence does not create a genuine issue of material
fact as to the contribution prong. The issue is whether BIAW or BIAW-MSC
expected to receive and ultimately did receive the MAF funds from the local
associations. The evidence shows that BIAW-MSC administered the retro
program from which the funds were generated and wasformed in part to run the
program; BIAW-MSC actually received the fees from the local associations and
then contributed them to ChangePAC; and these transactions were made
through BIAW-MSC's accounts. BIAW submitted evidence that "BIAW" was used
No. 66439-5-1 Consolid. w/No. 66737-8-1/10
generically to refer to BIAW-MSC, BIAW, or both. The documents to which Utter
and Ireland point fail to create an issue of fact.
Expenditure prong
Under the expenditure prong, an organization is considered a political
committee by expecting to make or making expenditures to further electoral
political goals. EFF, 111 Wn. App. at 599. An additional requirement under this
prong is that an organization must have as its primary purpose, or one of its
primary purposes, to affect, directly or indirectly, governmental decision making
by supporting or opposing candidates or ballot propositions. State v. (1972) Dan
J. Evans Campaign Comm.. 86 Wn.2d 503, 509, 546 P.2d 75 (1976).
Utter and Ireland contend the evidence shows that BIAW made or
expected to make electoral expenditures. Alternatively, even ifthose
expenditures are attributed to BIAW-MSC, Utter and Ireland argue, BIAW
"financed" or "controlled" BIAW-MSC's expenditures and BIAW-MSC's
expenditures should therefore be considered made by BIAW under RCW
42.17A.455(2). Finally, they contend electoral activity was one of BIAW's primary
purposes during the 2008 election cycle. We consider these issues in turn.
a. Whether BIAW made electoral expenditures
First, Utter and Ireland contend the following evidence shows that BIAW
made $233,648.89 in independent expenditures and over $6.4 million in electoral
expenditures to other political committees during the 2008 election cycle:
10
No. 66439-5-1 Consolid. w/No. 66737-8-1/11
• PDC "Cash Receipts Monetary Contributions" report dated October
13, 2008 stating that "Building Industry Association o" [sic] made an
aggregate total contribution of $6,169,175 to ChangePAC.
• PDC reporting form for "Electioneering Communications" dated
October 14, 2008 stating that "Building Industry Assn of WA" made
"total C-6 expenses" of $233,648.99 in relation to Rossi.
• BIAW reported making in-kind contributions of staff time to
ChangePAC and It's Time for a Change.
BIAW responds that the expenditures reflected in these PDC documents
are BIAW-MSC expenditures. It contends there was not enough room on the
forms for the full name "Building Industry Association of Washington Member
Services Corporation" and that the PDC discouraged the use of acronyms. BIAW
contends the PDC recognized this issue in its investigation when it wrote,
regarding BIAW-MSC's expenditures from 2006 to 2008:
BIAW-MSC pays for staff members who provide support for
reportable independent expenditures, electioneering
communications, and contributions to political committees. In these
instances, PDC reports show BIAW as the entity providing the
support. PDC reports should identify BIAW-MSC as providing the
support.
BIAW points to its income statements and BIAW-MSC's income statements to
show that BIAW-MSC made the expenditures. It also points to the statement by
its executive vice president, Tom McCabe, in a declaration that "BIAW does not
contribute to any political candidates or political action committees. Nor does it
make political expenditures." It notes that, as a non-profit entity, it must report to
the IRS both revenue and expenses on its Form 990, and contends there are no
electoral expenditures noted on the 2008 form.
11
No. 66439-5-1 Consolid. w/No. 66737-8-1/12
We agree with BIAW that the evidence fails to create an issue of material
fact that BIAW-MSC made the expenditures shown in the PDC reports. This
issue involves the identity of the entity — BIAW or BIAW-MSC—that made the
expenditures in question. Along with the other evidence to which BIAW points,
the contents of its 2008 Form 990 are inconsistent with BIAW having been the
entity that made the expenditures reflected in PDC reports.
However, we conclude that BIAW's 2008 Form 990 itself creates an issue
offact that BIAW made electoral expenditures.5 Part IV, Line 3 of the form asks,
5BIAW submits to this court an amended and corrected Form 990, contending that it
shows that BIAW did not spend any funds on electoral activities. The amended Form 990 shows
that BIAW's answer to Part IV, Line 3 (asking, "Did the organization engage in direct or indirect
political campaign activities on behalf of or in opposition to candidates for public office?") was
"no." Exhibit A to Declaration of Art Castle. In a Supplemental Information to Form 990 submitted
to the IRS, BIAW explained,
The organization is amending the 2008 Form 990 to correctly answer Form 990,
Part IV, Line 3. The organization only incurs lobbying expenditures, no political
expenditures or activities, and, therefore, should have answered this question
'no'. As a result, Schedule C, Part l-A is no longer completed. Schedule C, Part
lll-B remains the same to properly disclose lobbying expenditures and
nondeductible dues information.
BIAW requests this court to consider and rely upon the corrected Form 990, citing RAP
9.11, which provides:
The appellate court may direct that additional evidence on the merits of the case
be taken before the decision of a case on review if: (1) additional proof of facts is
needed to fairly resolve the issues on review, (2) the additional evidence would
probably change the decision being reviewed, (3) it is equitable to excuse a
party's failure to present the evidence to the trial court, (4) the remedy available
to a party through postjudgment motions in the trial court is inadequate or
unnecessarily expensive, (5) the appellate court remedy of granting a new trial is
inadequate or unnecessarily expensive, and (6) it would be inequitable to decide
the case solely on the evidence already taken in the trial court.'
RAP 9.11. Ordinarily, under the rule, the appellate court will "direct the trial court to take
additional evidence and find the facts based on that evidence." Id.
We decline to direct additional evidence to be taken under RAP 9.11. BIAW does not
explain why the requirements of the rule are met here. Ifthis matter were remanded, the trial
court could consider the evidence at its own discretion.
12
No. 66439-5-1 Consolid. w/No. 66737-8-1/13
"Did the organization engage in direct or indirect political campaign activities on
behalf of or in opposition to candidates for public office? If "Yes," complete
Schedule C, Part 1." BIAW answered "Yes" and attached Schedule C. On form
Schedule C, which contains the heading "Political Campaign and Lobbying
Activities," next to the entry for "Political expenditures," BIAW responded,
"$165,214." While political expenditures do not necessarily equate to electoral
expenditures, BIAW, as the moving party, fails to show that none of the $165,214
noted on Form 990 was spent on electoral activity.
b. Whether BIAW "controlled" BIAW-MSC's expenditures
Utter and Ireland also contend that even if there is no evidence that BIAW
made electoral expenditures, the evidence creates an issue of material fact that
BIAW "controlled" BIAW-MSC's expenditures as defined in RCW42.17A.455(2).6
They contend that if BIAW controlled BIAW-MSC's expenditures, BIAW-MSC's
expenditures are considered made by BIAW.
The preliminary issue we must decide is whether RCW 42.17A.455(2)
applies in this context, so that any electoral expenditures made by BIAW-MSC
are considered made by BIAW — for the purpose of determining whether BIAW
is a political committee — if BIAW "financed, maintained, or controlled" BIAW-
MSC's contribution or expenditure activity. RCW42.17A.455 provides:
6 In addition, Utter and Ireland contend that RCW 42.17A.460 makes BIAW responsible
even if it carried out the contribution through BIAW-MSC. We decline to consider this argument
because Utter and Ireland make only a passing reference to the statute and do not explain why
the evidence showed the statute applies.
13
No. 66439-5-1 Consolid. w/No. 66737-8-1/14
For purposes of this chapter:
(1) A contribution by a political committee with funds that have all
been contributed by one person who exercises exclusive control
over the distribution of the funds of the political committee is a
contribution by the controlling person.
(2) Two or more entities are treated as a single entity if one of the
two or more entities is a subsidiary, branch, or department of a
corporation that is participating in an election campaign or making
contributions, or a local unit or branch of a trade association, labor
union, or collective bargaining association that is participating in an
election campaign or making contributions. 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.
(3) The commission shall adopt rules to carry out this section and is
not subject to the time restrictions of RCW 42.17A.110(1).
RCW42.17A.455 (emphases added).
Utter and Ireland argue that under the plain language "[f]or purposes of
this chapter," RCW 42.17A.455 applies to all other provisions of chapter 42.17A
RCW, including RCW42.17A.005(37), which defines "political committee." BIAW
contends that under RCW 42.17A.455, campaign contributions from a
corporation and its controlled entities are aggregated only in determining whether
a campaign contribution cap has been reached, not in determining whether an
entity is a political committee under RCW42.17A.005(37). It cites Edelman v.
State ex rel. Pub. Disclosure Comm'n, 152 Wn.2d 584, 590, 99 P.3d 386 (2004)
in support, pointing to the court's statement that "[RCW 42.17A.455] specifies a
14
No. 66439-5-1 Consolid. w/No. 66737-8-1/15
relationship between entities in which those entities are considered a single entity
for purposes of campaign contribution limits."
When interpreting a statute, we first look to its plain language. State v.
Gonzalez, 168 Wn.2d 256, 271, 226 P.3d 13, cert, denied, 131 S. Ct. 318, 178 L
Ed.2d 207(2010) (citing State v. Armendariz, 160Wn.2d 106, 110, 156 P.3d 201
(2007)). If the plain language is subject to one interpretation only, our inquiry
ends. jd. However, even the language "for purposes of this chapter" may not be
determinative, as illustrated by a case cited by BIAW, Am. Legion Post #149 v.
Wash. State Dep't of Health, 164 Wn.2d 570, 192 P.3d 306 (2008).
In 1985, the state legislature had adopted the clear indoor air act, which
limited smoking in some public places. Am. Legion Post# 149. 164 Wn.2d at 581
(citing LAWS OF 1985, ch. 236). The act exempted "private facilities" and
"private enclosed workplace[s], within a public place, from the smoking ban. jd.
(citing former RCW 70.160.020(2) (1985), amended by LAWS OF 2006, ch. 2 §
2; RCW 70.160.060). In 2006, Washington voters enacted Initiative Measure
901, which expanded the prohibition on smoking in public places by amending
the definition of a "public place'" to include facilities such as schools, bars,
bowling alleys, and casinos. \± at 581-82 (citing LAWS of 2006, ch. 2). Initiative
901 also prohibited smoking in "'any place of employment.'" jd. at 582 (citing
RCW 70.160.030, .020(3)). Chapter 70.160 RCW is now entitled the smoking in
public places act. (the Act), id, at 581-82.
15
No. 66439-5-1 Consolid. w/No. 66737-8-1/16
American Legion Post #149, a private, nonprofit fraternal organization,
owned and operated a private facility open to members and guests. The
organization employed several workers to run the facility, k± at 582-83. At issue
was whether the Act prohibited smoking in the Post's facility. Id. at 581. The Act
prohibits smoking "in a public place or in any place of employment." RCW
70.160.030. "'Public place'" is defined as "that portion of any building or vehicle
used by and open to the public, regardless of whether the building or vehicle is
owned in whole or in part by private persons or entities, the state of Washington,
or other public entity." RCW 70.160.020(2). The final sentence of the definition of
a "'[pjublic place'" provides, "This chapter is not intended to restrict smoking in
private facilities which are occasionally open to the public except upon the
occasions when the facility is open to the public." RCW 70.160.020(2). A "'[pjlace
of employment'" is defined as "any area under the control of a public or private
employer which employees are required to pass through during the course of
employment. . . ." RCW 70.160.020(3).
The Post argued that smoking was not prohibited in its facility, pointing to
RCW 70.160.020(2). Am. Legion Post #149, 164 Wn.2d at 587. It contended that
"chapter" referred to the entire Act, chapter 70.160 RCW, and that ifvoters had
wanted the exception to apply only to the definition of a "public place," the
initiative should have modified that sentence. Id. at 587-88.
The court first explained,
'[l]n determining the meaning of a statute enacted through the
initiative process, the court's purpose is to ascertain the collective
16
No. 66439-5-1 Consolid. w/No. 66737-8-1/17
intent of the voters who, acting in their legislative capacity, enacted
the measure....' Where the language of an initiative enactment is
'plain, unambiguous, and well understood according to its natural
and ordinary sense and meaning, the enactment is not subject to
judicial interpretation. .. .' In construing the meaning of an initiative,
the language of the enactment is to be read as the average
informed lay voter would read it.
Am. Legion Post #149, 164 Wn.2d at 585 (internal quotation marks and citations
omitted). Furthermore, the court noted,
An initiative must be read in light of its various provisions, rather
than in a piecemeal approach, and in relation to the surrounding
statutory scheme. A court must, when possible, give effect to every
word, clause and sentence of a statute. The goal is to avoid
interpreting statutes to create conflicts between different provisions
so that we achieve a harmonious statutory scheme. If there is an
apparent conflict between two provisions, the more specific and
more recently enacted statute is preferred. Only if the language is
ambiguous may the court examine extrinsic sources such as a
voter's pamphlet.
Id. at 585-86 (internal quotation marks and citations omitted).
The court held that the Post's interpretation of RCW 70.160.020(2) was
inconsistent with the surrounding statutory scheme, voters' intent in enacting
Initiative 901 to protect employees from smoking regardless of whether they
worked in a public place, and relevant principles of statutory construction, jd. at
588. The exception for private facilities was part of the definition of a "public
place" and was not repeated under the definition of a "place of employment." jd.
The court concluded that "the exception for private facilities is an exception to the
definition of a 'public place' and does not apply to the prohibition against smoking
in 'any place of employment.'" JdL at 591. Thus, the language "this chapter" did
not refer to the entire act, chapter 70.160 RCW.
17
No. 66439-5-1 Consolid. w/No. 66737-8-1/18
Am. Legion Post #149 supports the proposition that the language "for
purposes of this chapter" does not necessarily mean a provision will apply to
every other provision in the chapter at issue. It also leads us to conclude we may
look at the context and purpose of a statute and the surrounding statutory
scheme. Here, as BIAW and amici7 note, RCW 42.17A.005 and RCW
42.17A.455 were enacted through different initiatives. Washington's campaign
finance reporting and disclosure rules, including the definition of "political
committee" contained in RCW 42.17A.005(37), were enacted by voters in 1972
with the passage of Initiative Measure No. 276. Twenty years later, RCW
42.17A.455 was adopted when voters approved Initiative 134, State of
Washington Voters Pamphlet, General Election 8, 11 (Nov. 3, 1992) to the
legislature.
We conclude that voters' intent in enacting the relevant portion of 1-134
(codified as RCW 42.17A.455) was to attribute contributions for the purpose of
determining whether campaign contribution limits had been reached. 1-134
focused on capping campaign contributions, as reflected by its short title and
ballot title:
Official BallotTitle: Shall campaign contributions be limited; public
funding of state and local campaigns be prohibited; and campaign
related activities be restricted.
7Washington State Labor Council, SEIU Healthcare 775NW, UFCW 21, Washington
State Education Association, SEIU Healthcare 1199NW, and SEIU Local 925. Amici each
finance, maintain, or control a political action committee that makes candidate contributions,
contributions to political committees, and/or independent expenditures in support of, or in
opposition to, various candidates and ballot propositions. Amici Brief 1. None ofthe amici are
registered as a political committee.
18
No. 66439-5-1 Consolid. w/No. 66737-8-1/19
Short Title: AN ACT Relating to the regulation of political
contributions and campaign expenditures ....
Initiative Measure No. 134 (1-134) contained the following codified statement of
intent:
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 of large organizational contributors; and
(c) Restore public trust in governmental institutions and the
electoral process.
RCW 42.17A.400(2). The Washington Supreme Court observed that this
legislation "sought to accomplish the initiative's purpose by establishing
campaign contribution limits." Edelman, 152 Wn.2d at 587. There is no indication
in the language of the initiative informing voters that Part III, Section 6 (codified
as RCW 42.17A.455) would expand the obligations of entities required to register
and report as political committees.
The text and structure of the initiative also support the proposition that the
language following "for purposes of this chapter" in RCW 42.17A.455 is aimed at
determining whether campaign contribution limits have been reached. What was
codified as RCW 42.17A.455 was Section 6 of Part III (entitled "Contributions") of
1-134. The first section of Part III—Section 4—limits the amount that can be
contributed to candidates. Section 5 addresses attribution of contributions by
family members, Section 6 addresses attribution of contributions by controlled
entities, and Section 7 provides that "earmarked" contributions made through a
third party are attributed to the original contributor. None of these sections states
19
No. 66439-5-1 Consolid. w/No. 66737-8-1/20
that it is directed solely to determining whether contribution limits in Section 4
have been met, although that is the evident purpose of the sections in Part III.
Finally, limiting RCW 42.17A.455 to the campaign contribution context is
consistent with the definition of political committee itself. Under the plain
language of the definition of "political committee" in RCW42.17A.005(37), the
organization must itself make expenditures to be considered a political
committee. See RCW42.17A.005(37). ("'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."). But if RCW 42.17A.455 is applied in the context of defining a
political committee, a trade association, labor union, collective bargaining
organization (or the local unit of any such entity) can be a political committee
even if it does not itself make any political expenditures, so long as it finances,
maintains, or controls the contribution or expenditure activity of a political
committee. We conclude that RCW 42.17A.455 does not apply so that BIAW-
MSC's electoral expenditures are attributed to BIAW, for the purpose of
determining whether BIAW is a political committee, if BIAW financed, maintained,
or controlled BIAW-MSC's contribution or expenditure activity.
c. Whether electoral activities were one of BIAW's primary purposes
Finally, we must determine whether there was a genuine issue of material
fact that electoral activities were one of BIAW's primary purposes. The following
20
No. 66439-5-1 Consolid. w/No. 66737-8-1/21
non-exclusive factors are considered: (1) the organization's stated goals and
mission; (2) whether the organization's conduct furthers its stated goals and
missions; (3) whether the stated goals and mission would be substantially
achieved by a favorable outcome in the election; and (4) whether the
organization uses non-electoral means to achieve its stated goals. EFF, 111 Wn.
App. at 600. "[Ijfthe organization has merely restated its primary political purpose
in broad nonpolitical terms, the organization's purpose will likely be achieved in
an upcoming election. But if electoral political activity is merely one means the
organization uses to achieve its legitimate broad nonpolitical goals, electoral
political activity cannot be said to be one of the organization's primary purposes."
EFF. 111 Wn. App. at 600.
We conclude that while BIAW's mission statement8 does not support a
finding that electoral activity is one of BIAW's primary purposes as a general
matter, the evidence in the record, viewed in the light most favorable to Utter and
Ireland, nonetheless creates an issue of fact as to whether BIAW's conduct
during the 2008 election cycle furthered its stated goals and missions, whether
8 BIAW's mission statement reads:
The Building Industry Association of Washington is the voice of the housing
industry in the state of Washington. The association is dedicated to
ensuring and enhancing the vitality of the building industry for the benefit of
its members and the housing needs of its citizens.
To accomplish this purpose, the association's primary focus is to educate,
influence and affect the legislative, regulatory, judicial and executive
agencies of Washington's government. The Building Industry Association
of Washington will offer its membership those services which can best be
provided on a state wide basis and will disseminate information concerning
the building industry to all associated members and the public.
21
No. 66439-5-1 Consolid. w/No. 66737-8-1/22
BIAW's stated goals and mission would be substantially achieved by Rossi
winning the election, and whether BIAW used non-electoral means to achieve its
stated goals during that time. There is evidence from which it may be inferred
that supporting Rossi's campaign was a top priority for BIAW leading up to the
2008 election and that BIAW made significant efforts toward that end. This
evidence includes the following:
• June 29, 2007 meeting minutes for BIAW's Board of Directors show
that BIAW president Daimon Doyle announced that he was
encouraged by the support from the local associations to contribute
to BIAW's 2008 governor fund and that so far over $550,000 had
been raised. Rossi was a guest speaker at this meeting and
thanked BIAW members for their support.
• In a letter to BIAW members asking them to contribute at least 10
percent of their refunds from the retro program to the 2008
gubernatorial race, Doyle wrote:
The next Governor will, in my opinion, make the most significant
impact on the long-term success of our industry and our
businesses. He or she will be the driving force for a change in
our state's business climate—either for better or worse in 2008
and beyond. He or she will appoint the Directors of the
Departments of Ecology and Labor & Industries—both agencies
that have direct (and potentially very negative) impacts on our
industry and our individual businesses. He or she will set the
tone in all areas of a government that is pervasive in our lives.
No single individual in this state has a greater influence on our
future than the Governor. Getting the right person in office is
critical.
If every member were to contribute just 10% of their refund, we
would begin the 2008 Governor's race with a war chest in
excess of $3.7 million! Combined with substantial funds that
have already been committed by BIAW and its local
associations, I believe that we can make a tremendous impact
on an election that was so close it took two re-counts to
complete last time.
• In a March 9, 2007 email to other BIAW leaders, Doyle wrote, "In
light of recent attacks on our entire industry by the legislature, we
22
No. 66439-5-1 Consolid. w/No. 66737-8-1/23
have never been more in need of a pro-housing Governor than now
• In a March 22, 2007 email, Doyle wrote:
Our State government has become very anti-business and in
many respects anti-builder. This year is just one example of how
our industry can be majorly affected by the legislation passed in
Olympia. Add to that, our opponents—those who want tighter
environmental restrictions and have pledged to dismantle the
Retro program—are huge supporters of the current incumbents.
With one vote shy of a 2/3 majority in both the House and
Senate, it would take huge sums of money and many years of
effort to win back even one of those two bodies. However, the
change of just one individual, the Governor, would have a
profound effect on this state. Regardless of what the legislature
votes out, the Governor has the veto pen.. .. We must get a
pro-housing Governor in office and 2008 will be our best
opportunity.
• In January 2008, newly elected BIAW president Brad Spears
announced, "One of my priority goals as the 2008 President of the
Building Industry Association of Washington is to replace anti-small
business and anti-affordable housing Governor Gregoire with her
pro-small business and affordable housing challenger Dino Rossi."
• February 27, 2008 meeting minutes for BIAW's Board of Directors
show that Spears announced that BIAW's number one priority this
campaign season would be to help Rossi get elected. Spears
reported that the General Membership luncheon, which was well
attended, featured Rossi as the guest speaker and that Rossi had
delivered a "great speech." jd. Four recent polls showed that if the
election were held today, Rossi would win. Spears had met with
leaders across the state and nation who shared their respect for
BIAW due to its successes and efforts. Spears also reported that
candidates came to BIAW because they knew BIAW had the
resources, will, and tools in place to get the job done. jd.
• In promoting the main benefits of BIAW membership, BIAW cited its
"Political Program": "BIAW's experienced team of lobbyists and
members . .. work to elect 'business friendly' candidates
We conclude that the evidence created a genuine issue of material fact
that BIAW made electoral expenditures and that electoral activities were one of
its primary purposes during the 2008 election.
23
No. 66439-5-1 Consolid. w/No. 66737-8-1/24
Preclusive Effect of Attorney General's Actions
BIAW contends that Utter and Ireland's lawsuit was precluded under RCW
42.17A.765(4).9 Though notfor the reasons asserted by BIAW, we agree and
affirm the trial court's dismissal of Utter and Ireland's claims on summary
judgment.
RCW42.17A.765(4) provides:
(4) A person who has notified the attorney general and the
prosecuting attorney in the county in which the violation occurred in
writing that 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.
(a) This citizen action may be brought only if:
(i) The attorney general and the prosecuting attorney have
failed to commence an action hereunder within forty-five
days after the notice;
(ii) The person has thereafter further notified the attorney
general and prosecuting attorney that the person will
commence a citizen's action within ten days upon their
failure to do so;
(iii) The attorney general and the prosecuting attorney have
in fact failed to bring such action within ten days of receipt of
said second notice; and
(iv) The citizen's action is filed within two years after the date
when the alleged violation occurred.
RCW42.17A.765(4). Thus, a citizen's action may be brought in the name of the
State if the State has failed to commence an action. See also Vance v. Offices of
Thurston Countv Comm'rs, 117 Wn. App. 660, 670, 71 P.3d 680 (2003) (a
plaintiff can bring a citizen's action under former RCW 42.17.400 only if
"authorities fail to act after receiving notice of possible violations."); Crisman v.
9The trial court did not reach this argument in BIAW's motion for summary judgment.
24
No. 66439-5-1 Consolid. w/No. 66737-8-1/25
Pierce Countv Fire Protection Dist. No. 21. 115Wn. App. 16, 22, 60 P.3d 652
(2002) (citizen enforcement action may be brought "only after notice to and
failure by the attorney general and the prosecuting attorney to act."). A "citizen's
action" refers to "any of the actions .. . authorized under this chapter." RCW
42.17A.765(4). The statute permits the following actions:
(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 RCW42.17A.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 in the county in which such person
resides or is found, to give such information under oath and to
produce all accounts, bills, receipts, books, paper and 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 or produce the accounts, bills,
receipts, books, papers, and documents that may be relevant or
material to any investigation authorized under this chapter, 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, shall be effective
statewide, and, upon application of the attorney general or the
prosecuting authority, obedience to the order may be enforced by
any superior court judge in the county where the person receiving it
resides or is found, in the same manner as though the order were a
subpoena. The court, after hearing, for good cause, and upon
application of any person aggrieved by the order, shall have the
right to alter, amend, revise, suspend, or postpone all or any part of
25
No. 66439-5-1 Consolid. w/No. 66737-8-1/26
its provisions. 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, and the action shall be subject to review
by the appellate courts by certiorari or other appropriate
proceeding.
RCW42.17A.765(1-3).
The issue before us is what constitutes "action" by the State. Utter and
Ireland contend that because the AG's lawsuit named only BIAW-MSC, not
BIAW, Utter and Ireland were free to file a lawsuit against BIAW. BIAW contends
that under the statute's plain language, so long as the State files a lawsuit (which
it did here, against BIAW-MSC) based on any allegations in a citizen's notice
letter, the citizen may not bring an action.
There are few cases addressing when a citizen's action under RCW
42.17A.765 may be brought. In one such case, EFF, the Evergreen Freedom
Foundation filed an administrative complaint against the Washington Education
Association (WEA) with the AG, alleging various violations of the Public
Disclosure Act, former chapter 42.17 RCW, in WEA's efforts opposing two
statewide initiatives in the 1996 general election, jd. at 592, 594. We noted that
EFF was "free to file a citizen's lawsuit on the issues that either the [PDC] or the
AG did not act on." jd. at 594. We concluded that where the PDC acted on
certain allegations against WEA by filing an administrative action based on those
allegations, those specific allegations could not be included in EFF's citizen's
action. What we did not have occasion to decide in EFF is whether the AG or the
PDC "fail[sj to commence an action" under RCW 42.17A.765(4) when it takes
26
No. 66439-5-1 Consolid. w/No. 66737-8-1/27
action under RCW 42.17A.765(2) or (3) but declines to bring a civil action under
subsection (1).
Where a "citizen's action" refers to any of the actions authorized under
chapter 42.17A RCW, we think it logical that an "action" by the AG or the PDC
also refers to any of the actions authorized under RCW42.17A.765. Thus, we
conclude that if the State takes an action under RCW42.17A.765—such as
completing an investigation and obtaining information under subsection (2)—
within the 45-day period under subsection (4)(a)(i) or the ten-day period under
subsection (4)(a)(iii), a citizen's action may not be brought. To hold otherwise
would mean that even where the State has thoroughly investigated an allegation
and determined it to be without merit, a citizen action could still be filed in the
State's name. In other words, as we observed in EFF, "every watchdog group
would be able to demand that the PDC find the watchdog's allegations
meritorious or the watchdog could sue in superior court." IcL at 609.
Here, on July 25, 2008, Utter and Ireland sent a 45-day notice letter to the
State in which they alleged that BIAW and BIAW-MSC qualified as political
committees under both the contribution and expenditure prongs. The same day,
the AG forwarded the letter to the PDC for it to investigate Utter and Ireland's
allegations. Utter and Ireland sent a ten-day notice letter on September 9, 2008.
By September 11, the PDC had completed an investigation and issued a "Report
of Investigation" regarding its findings and conclusions. On September 19, the
27
No. 66439-5-1 Consolid. w/No. 66737-8-1/28
AG filed suit against BIAW-MSC. Utter and Ireland filed their lawsuit against
BIAW on October 6.
As to the allegations against BIAW under the contribution prong, the PDC
determined that the contributions in question had actually been received by
BIAW-MSC. See CP at 66. The PDC concluded that the evidence supported the
allegation that BIAW-MSC committed "multiple apparent violations of RCW 42.17
by failing to register as a political committee and report the contributions it
solicited, received and retained from its local associations in 2007, and by failing
to report expenditures to ChangePAC in 2008 with the contributions received."
CP at 59. Regarding the allegations against BIAW under the expenditure prong,
the PDC noted that it had reviewed BIAW's revenues and expenditures for 2006,
2007, and the first six months of 2008. The PDC concluded that BIAW "does not
solicit or receive contributions to support or oppose candidates or ballot
propositions, and does not contribute to candidates or political committees."10 CP
at 69. Based on the results of PDC's investigation and report, the AG filed a
lawsuit against BIAW-MSC in Thurston County but decided not to file a lawsuit
against BIAW.
The State took an action against BIAW under RCW 42.17A.765 when it
caused the PDC to investigate the allegations that BIAW was a political
10 We recognize that the PDC'sconclusion that BIAW did not make any expenditures to
further electoral political goals appears to conflictwith our determination that the evidence
(BIAW's tax Form 990) creates an issue of fact as to whether BIAW was a political committee
under the expenditure prong. We note, however, that it is still unclear whether any of the "political
expenditures" in BIAW's Form 990 constituted electoral expenditures; as we noted, BIAW simply
has not provided the evidence to clarify what this money was spent on. The PDC may have
determined that none of the political expenditures constituted electoral expenditures, or it may not
have relied on the Form 990 that is in the record before this court.
28
No. 66439-5-1 Consolid. w/No. 66737-8-1/29
committee and then declined to file a lawsuit based on the PDC's conclusion that
BIAW did not receive contributions or make expenditures to further electoral
political goals and was not a political committee. While a citizen's action should
be permitted where the State refuses to investigate or determine the merit of a
citizen's complaint, to permit a citizen to bring a lawsuit where the State has
investigated the allegations or caused them to be investigated, determined them
to lack merit, and decided it will not bring an action is inconsistent with the notion
that the citizen's action is brought "in the name of the state."
Cross-Appeal of Attorney's Fees
BIAW sought attorney's fees from Utter and BIAW for bringing a citizen's
action "without reasonable cause" under RCW 42.17A.765(4)(b). It also sought
an award of fees against the State, claiming fees were due under RCW
42.17A.765(5) for the State's failure to intervene in the action.
A trial court's denial of a motion for attorney's fees is reviewed for abuse
of discretion. Highland School Dist. No. 203 v. Racy. 149 Wn. App. 307, 312, 202
P.3d 1024 (2009). "Discretion is abused when it is exercised on untenable
grounds or for untenable reasons." Id. (citing State ex rel. Carroll v. Junker, 79
Wn.2d 12, 26, 482 P.2d 775 (1971)).
First, BIAW sought fees from Utter and Ireland under RCW
42.17A.765(4)(b), which provides:
If the person who brings the citizen's action prevails, the judgment
awarded shall escheat to the state, but he or she shall be entitled to
be reimbursed by the state of Washington for costs and attorneys'
fees he or she has incurred. In the case of a citizen's action that is
29
No. 66439-5-1 Consolid. w/No. 66737-8-1/30
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 attorneys' fees
incurred by the defendant.
The purpose of this provision is "to prevent frivolous and harassing lawsuits."
EFF, 111 Wn. App. at 615 (internal citation omitted). "Frivolous" lawsuits and
actions "without reasonable cause" have been defined as those that "cannot be
supported by any rational argument on the law or facts." Bill of Rights Legal
Foundation v. Evergreen State College, 44 Wn. App. 690, 696-97, 723 P.2d 483
(1986) (applying RCW 4.84.185, providing for attorney's fees in actions that are
"frivolous and advanced without reasonable cause"). "[Ajllegations that, upon
careful examination, prove legally insufficient to require a trial are not, for that
reason alone, frivolous." Id. (quoting Hughes v. Rowe, 449 U.S. 5, 101 S. Ct.
173, 178, 66 L Ed. 2d 163 (1980)).
We conclude the trial court did not abuse its discretion in denying BIAW's
fee request. BIAW cites the following evidence that Utter and Ireland's lawsuit
was brought without reasonable cause: (1) their claims were precluded by the
AG's action against MSC; (2) the evidence indicated that the actions at issue
were those of MSC; (3) the PDC and AG determined their claims lacked merit
and declined to pursue claims against BIAW; (4) the urgency of the suit was
manufactured to disrupt the campaign of and generate negative publicity
regarding Rossi; (5) Utter and Ireland were motivated by a desire to punish BIAW
for political speech they did not like; and (6) their litigation tactics unreasonably
increased the cost of litigation.
30
No. 66439-5-1 Consolid. w/No. 66737-8-1/31
These reasons do not demonstrate an abuse of discretion by the trial
court. The first involves a disputed legal issue that the trial court did not resolve
given the basis of its decision. The second reason continues to be disputed by
the parties on appeal. The third does not show that the lawsuit was without a
reasonable basis because it is apparent that Utter and Ireland disagree with the
conclusions of the PDC and the AG. As for the fourth and fifth reasons, Utter and
Ireland's motives and concerns in filing suit, do not factor into whether they had
reasonable cause to bring the lawsuit or whether it was frivolous. Nor does the
standard take into consideration a plaintiff's litigation tactics.
BIAW also claims the trial court abused its discretion in denying its request
for attorney's fees from the State under RCW 42.17A.765(5), which provides:
In any action brought under this section, the court may award to the
state all costs of investigation and trial, including reasonable
attorneys' fees to be fixed by the court. Ifthe violation is found to
have been intentional, the amount of the judgment, which shall for
this purpose include the costs, may be trebled as punitive
damages. Ifdamages or trebled damages are awarded in such an
action brought against a lobbyist, the judgment may be awarded
against the lobbyist, and the lobbyist's employer or employers
joined as defendants, jointly, severally, or both. If the defendant
prevails, he or she shall be awarded all costs of trial, and may be
awarded reasonable attorneys' fees to be fixed by the court to be
paid by the state of Washington.
An award of fees pursuant to RCW42.17A.765(5) is discretionary. San Juan
Countv v. No New Gas Tax, 160 Wn.2d 141, 165, 157 P.3d 831 (2007).
BIAW contends fees were due to it because the AG failed to intervene
despite concluding that Utter and Ireland's claims were barred. Utter and Ireland
31
No. 66439-5-1 Consolid. w/No. 66737-8-1/32
point out the State was never given notice of BIAW's motion for attorneys' fees,
let alone given an opportunity to appear and contest such motion.
We agree with Utter and Ireland. The State was not a party to this action,
and BIAW cites no authority to support the proposition that the State must pay
costs and fees in a case where it does not intervene and the defendant prevails.
Furthermore, it is speculative to suggest the trial court would have dismissed this
case in the event that the State had intervened.
Furthermore, we deny BIAW's request for attorney fees on appeal under
RAP 18.9 and RCW 4.84.185. We do not agree that Utter and Ireland's appeal is
frivolous.
Affirmed.
WE CONCUR: >
&£X
6^,X V^KW^ >i
ORDER GRANTING RESPONDENT'S MOTION FOR RECONSIDERATION,
WITHDRAWING OPINION FILED OCTOBER 29, 2012; AND SUBSTITUTING
OPINION
On October 29, 2012, this court filed its unpublished opinion in the above-
entitled action. Respondent/cross-appellant has moved for reconsideration. The
court has taken the matter under consideration and has decided to grant the
motion for reconsideration.
32
No. 66439-5-1 Consolid. w/No. 66737-8-1/33
IT IS HEREBY ORDERED that the respondent/cross-appellant's motion
for reconsideration is granted;
IT IS FURTHER ORDERED that the unpublished opinion of this court filed
in the above-entitled action on October 29, 2012 be withdrawn and that the
attached opinion be substituted in its place.
33
Robert F. Utter & Faith Ireland, App./x-resp. v. Building Industry Assoc. Of Wa, Resp./x-app.
Combined Opinion