(dissenting) — The purpose of chapter 41.12 RCW is to “provide for promotion on the basis of merit” in city police departments. Reynolds v. Kirkland Police Comm’n, 62 Wn.2d 720, 725, 384 P.2d 819 (1963) (emphasis *841added).20 And absent a civil service system which “substantially accomplish [es] th[is] purpose,” RCW 41.12.010, a city police department is statutorily prohibited from promoting any person other than the top candidate for each position available. RCW 41.12.100. The majority does not dispute this purpose, nor the default statutory system. Majority at 831-32.
The majority nevertheless slides further down the slippery slope about which Chief Justice Wright warned over 25 years ago:
It is only a matter of degree and not a difference in kind whether the appointment is made from a list of 3 or a list of 25, or in fact, from a list of 100 names. If the selection can be other than the one best, the element of absolute integrity is gone; politics can enter in.
Int’l Ass’n of Fire Fighters, AFL-CIO, Local 404 v. City of Walla Walla, 90 Wn.2d 828, 835, 586 P.2d 479 (1978) (Wright, C.J., dissenting) (hereinafter Local 404).
Moreover even if the rule of five were lawful, the Court of Appeals’ invalidation of the city of Seattle’s (City) 25 percent21rule generates a genuine, if not palpable, issue of material fact thereby precluding summary judgment.
Because the majority opens the door wider for politics and favoritism, two evils absolutely inconsistent with a merit-based hiring system, and because the majority does not properly apply the appropriate standard for summary judgment, I dissent.
*842I
The ordinance at issue provides:
The [Public Safety Civil Service Commission (hereinafter PSCSC)] shall:
6) When a vacant position is to be filled, certify to the appointing authority the names of candidates in the top 25% of the eligible register, or the top five candidates, whichever number is larger, subject to affirmative action requirements. Where more than one position in a class is to be filled, certify one additional name of the person standing next highest on the register for each additional position. The appointing authority shall fill such positions by appointment only from the persons certified by the [PSCSC].
Seattle Ordinance 107791, § 7(6) (Nov. 6, 1978).
Local 404 held the Walla Walla fire department’s practice of certifying the top three candidates for eligibility for promotion substantially accomplished the purpose of hiring based on merit. Local 404, 90 Wn.2d at 831-32. The fundamental basis of the majority decision was the historical acceptance of the rule of three which existed prior to the legislature enacting chapter 41.08 RCW.22 It said:
An important indication of the legislative intent can be gleaned from the history of RCW 41.08. In 1935, both Bellingham and Tacoma used the “rule of three” in their civil service systems which included the fire departments. Had the legislature considered the “rule of one” to be essential to fire department civil service, it could easily have conditioned the exemption on the adoption of that rule.
Local 404, 90 Wn.2d at 832. It noted the rule of three was “ ‘a well-established and well-recognized method of carrying out and accomplishing the purposes of civil service.’ ” Id. (quoting Bellingham Firefighters Local 106 v. City of Bellingham, 15 Wn. App. 662, 666, 551 P.2d 142 (1976)). *843There was no indication the legislature attempted to eradicate a widely accepted practice by adopting the rule of one in RCW 41.08.100, thereby persuading this court to accept that practice as lawful. See id. Yet the majority brushes aside the absence of any historical support for the rule of five, claiming Local 404’s “approval of the ‘rule of three’ hinged on our interpretation of the language ‘substantially accomplish[es] the purpose’in RCW 41.08.010.” Majority at 834 n.ll (alteration in original). True, the ultimate disposition of Local 404 hinged on this construction, but contrary to that suggested by the majority, we did not apply the phrase in a legal vacuum. Rather we looked to the history supporting the rule of three preexisting the legislature’s adoption of chapter 41.08 RCW in 1935. Local 404, 90 Wn.2d at 832. The rule of five which is presently before us, however, is devoid of any similar historical acceptance.23
The City’s practice also demonstrates the department’s patent willingness to disregard merit and give greater weight to other factors such as gender and ethnic origin. Nothing in chapter 41.12 RCW permits such considerations, and expressly mandates the precise opposite: “All.. . promotions in the department shall be made solely on merit, efficiency, and fitness . . . which shall be ascertained by open competitive examination and impartial investigation.” RCW 41.12.050(4) (emphasis added). The scheme employed by the City renders the “open competitive examination” meaningless once the results are released even though the examination is the statutorily directed *844basis for ascertaining merit. Id. Chief Norm Stamper affirmed his practice of ignoring the difference in merit scores between certified candidates by testifying he “perceive [d] the certification list as horizontal and [did] not accord weight or consideration to any element of the civil service score after he receives the certification.” Clerk’s Papers (CP) at 136 (emphasis added).
The scheme in practice (as modified by affirmative action considerations) demonstrated some candidates were also made available for promotion based on their race or gender—even though they did not score high enough on the merit exam to be on the general certified list. For example the December 29, 1995 certification list made pursuant to Captain Nicholas Metz’s request (acting as personnel director) to fill 10 sergeant vacancies included 29 names pursuant to the 25 percent rule. There were also four separate certifications of two women, one Native American, four Hispanic Americans, and nine Asian Americans who did not qualify under either the rule of five or the rule of 25 percent. See CP at 478, 489-92. This practice cannot coexist with, and is facially contrary to, a merit system which “require [s] public officials to hire, promote and discharge employees based on merit rather than political affiliation, religion, favoritism or race.” City of Yakima v. Int’l Ass’n of Fire Fighters, 117 Wn.2d 655, 664, 818 P.2d 1076 (1991).24
Despite the absence of any historical basis to support its conclusion, the majority asserts chapter 41.06 RCW justifies the assumption “[t]he legislature obviously believed that certifying more than three names for promotions could accomplish th[e] purpose” of civil service acts. Majority at 836. Chapter 41.06 RCW was established by initiative in 1960, establishing a rule of two for state employees. The legislature has twice amended the statute to increase the number of candidates certified for promotion to six, the *845current statutory number.25 See Laws of 1993, ch. 281, § 27, codified as amended at RCW 41.06.150(2). Thus, according to the majority, legislative provisions relating to state civil service employees are an “obvious [ ]” indicator of legislative intent to grant more discretion to city civil service systems in police and fire departments. Majority at 836. This argument presumes the legislature intended its amendments to chapter 41.06 RCW to apply to chapter 41.12 RCW. I posit the opposite conclusion would rationally follow.
Legislative intent is derived from the text of the statute whenever possible. State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). If the legislature employs different provisions in the same statute, we presume the legislature intends different meanings to apply. State v. Talley, 122 Wn.2d 192, 216, 858 P.2d 217 (1993). This rule carries more weight when the legislature employs different provisions in different statutes. See State v. Roth, 78 Wn.2d 711, 715, 479 P.2d 55 (1971). We further presume “the legislature . . . know[s] the existing state of the case law in those areas in which it is legislating.” Woodson v. State, 95 Wn.2d 257, 262, 623 P.2d 683 (1980); see also Price v. Kitsap Transit, 125 Wn.2d 456, 463, 886 P.2d 556 (1994).
Despite the evolution of chapter 41.06 RCW to now include the rule of six, see RCW 41.06.150, the legislature has not once revised the “rule of one” embedded in RCW 41.12.100 since its enactment in 1937. Nor has the legislature endeavored to amend the city fire department’s traditional “rule of one” procedure since its adoption in 1935. Laws of 1935, ch. 31, § 11, codified at RCW 41.08.100. And since this court held the “rule of three” substantially accomplished the purpose of chapter 41.08 RCW in 1978 (which is identical in all relevant aspects to chapter 41.12 RCW), see Local 404, 90 Wn.2d at 830, the legislature has *846not only had the opportunity to amend chapter 41.12 RCW, but it has done so four times. See Laws of 1987, ch, 339, § 2 (amending RCW 41.12.050); Laws of 1993, ch. 47, § 5 (amending RCW 41.12.040); Laws of 1993, ch. 189, § 1 (amending RCW 41.12.050); Laws of 2002, ch. 143, § 1 (amending RCW 41.12.050). None of these amendments, however, has expanded the judicially accepted “rule of three” nor the statutorily adopted “rule of one.” Even more specific is the legislature’s express pronouncement of chapter 41.06 RCW’s application to state agencies. RCW 41.06.040 expressly limits chapter 41.06 RCW’s reach to “[e]ach board, commission, or other multimember body, including, but not limited to, those consisting in whole or in part of elective officers [and] [e]ach agency, and each employee and position therein, not expressly excluded or exempted under the provisions of RCW 41.06.070.” RCW 41.06.020 defines “[b]oard” and “[a]gency” to include only divisions of the state government. And while RCW 41.06.070 exempts certain divisions of the state government from applicability of chapter 41.06 RCW, there is simply no indication chapter 41.06 RCW applies to any city municipality.
That the legislature elected to distinguish between state civil service systems and city civil service systems is of no concern. “It is not the province of this court to second-guess the wisdom of the Legislature’s policy judgment so long as the Legislature does not offend constitutional precepts.” Davis v. State ex rel. Dep’t of Licensing, 137 Wn.2d 957, 976 n.12, 977 P.2d 554 (1999).
The majority’s injection of the “rule of six” into chapter 41.12 RCW is completely at odds with basic rules of statutory construction and in fact rewrites the statute by assuming the legislature intended chapter 41.06 RCW to apply to chapter 41.12 RCW, notwithstanding the absence of any statutory text to support such a view. Courts simply have no authority to act as the majority does, and we said as much in State v. Groom, 133 Wn.2d 679, 689, 947 P.2d 240 (1997): “[H]owever much members of this court may *847think that a statute should be rewritten, it is imperative that we not rewrite statutes to express what we think the law should be. We simply have no such authority.”
Absent any legislative guidance on the promotional hiring system in city police departments, I would adhere to the previously adopted “rule of three” as the upper limit of certification, noting even that rule is problematic for the reasons articulated by Chief Justice Wright. See Local 404, 90 Wn.2d at 835 (Wright, C.J., dissenting).
II
Even were we to arbitrarily adopt a rule of five, application of the proper summary judgment standard would still preclude affirming the Court of Appeals. The majority claims summary judgment in favor of the City was appropriate because “Chief Stamper ‘could always lawfully select one of the other candidates on the list.’ ” Majority at 839 (quoting Seattle Police Officers Guild v. City of Seattle, 113 Wn. App. 431, 440, 53 P.3d 1036 (2002)). This approach misapplies the summary judgment standard.
We have repeatedly warned “[s]ummary judgment exists to examine the sufficiency of legal claims and narrow issues, not as an unfair substitute for trial” Babcock v. State, 116 Wn.2d 596, 599, 809 P.2d 143 (1991) (emphasis added); see also City of Seattle v. State, 136 Wn.2d 693, 697, 965 P.2d 619 (1998). As such summary judgment is plainly inappropriate unless the moving party meets its initial burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. CR 56(c); Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
A similar situation was confronted in Graves v. P.J. Taggares Co., 94 Wn.2d 298, 616 P.2d 1223 (1980). There the plaintiff prevailed on partial summary judgment which held the defendant was a principal of the primary tortfeasor and therefore vicariously liable, even though the plaintiff offered only an affidavit describing the automobile accident *848and that the driver was an agent as a matter of law. Id. at 302. We reversed summary judgment, noting “ ‘[i]f the moving party does not sustain [its initial] burden [to offer factual evidence showing it is entitled to judgment as a matter of law], summary judgment should not be entered, irrespective of whether the nonmoving party has submitted affidavits or other materials.’ ” Id. (emphasis added) (quoting Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)).
The same is true here. It is the City’s initial burden as the summary judgment movant to show an absence of a genuine issue of material fact before such burden shifts to the officers. CR 56(c); Young, 112 Wn.2d at 225. Only when the City makes this initial showing would Ramm and the other officers have to bring forth evidence demonstrating a genuine issue of material fact still exists. CR 56(e); Berger v. Sonneland, 144 Wn.2d 91, 112, 26 P.3d 257 (2001); Graves, 94 Wn.2d at 302. Were we faced with the officers’ motion for summary judgment, the majority might be correct. But such is not the case as it is the City which moved for summary judgment of dismissal. As the summary judgment movant, the City must set forth facts and evidence showing no genuine issue of material fact exists, and it is entitled to judgment as a matter of law. CR 56(c). And though a party opposing summary judgment cannot rely on “argumentative assertions that unresolved factual issues remain,” Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986), the nonmoving party’s obligation to provide some evidence rebutting the moving party’s evidence does not arise unless and until the movant meets its initial burden. To show it is entitled to judgment as a matter of law the City must demonstrate the officers would not have been hired under the rule of five. The City cannot do this with respect to Officers Tim Greeley and Keith Swank.26
*849In December 1995 Captain Nicholas Metz (acting on behalf of Chief Stamper) requested certification to fill 10 vacancies for police sergeant. Following the 25 percent rule, the PSCSC certified 29 names of the 80 eligible candidates. Had the PSCSC followed the rule of five, only 14 candidates would have been certified, one of whom would have been Greeley. Two of the 10 officers promoted—officers David Unger and Donald MacMillan—would not have been certified under the rule of five. CP at 478, 486-92, 564. At least four other occasions in which Greeley was passed over involved similar situations where the promotion was given to a person who never should have been certified.27
The same can be said for Officer Swank. Chief Stamper requested certification on November 13, 1998, for six sergeant vacancies. The PSCSC certified 21 names, 11 more than authorized by the rule of five. Of the six officers .promoted to sergeant, one (Teresa Duffy) would not have been certified under the rule of five. CP at 522, 539-41, 568. *850An officer who never should have been certified was promoted over Swank two other times.28
Yet the majority still prevents a jury from resolving these factual matters, citing evidence in the record suggesting Chief Stamper and other high-ranking officials within the Seattle Police Department looked disfavorably upon Officers Greeley and Swank. But this evidence in isolation, even though uncontradicted by Officers Greeley and Swank, is still insufficient to overcome the City’s threshold summary judgment burden because a court reviewing a summary judgment motion must view all facts and reasonable inferences therefrom in a light most favorable to the nonmoving party. Stalter v. State, 151 Wn.2d 148, 154, 86 P.3d 1159 (2004); Berger, 144 Wn.2d at 102-03; Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). And only when reasonable minds could reach but one conclusion on the evidence should the court grant summary judgment. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003); Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974).
The majority affirms summary judgment claiming the evidence shows “Chief Stamper always had discretion to choose someone other than [Officer Greeley or Officer Swank].” Majority at 839 n.19. I agree that option was present—but so was Chief Stamper’s option to select the plaintiff officers who are the nonmoving parties to a summary judgment motion. Any reasonable inference on whom Chief Stamper would have hired must be viewed in favor of Officers Greeley and Swank. It is plausible to conclude Chief Stamper might have promoted someone other than Officer Greeley or Officer Swank had the City followed the *851rule of five; however it is equally plausible under this record to conclude Chief Stamper would have chosen Greeley and/or Swank over the other candidates, especially given their high marks on the civil service exam. Deciding which conclusion is more or less probable is within the province of the jury, not this court. See Morton v. Lee, 75 Wn.2d 393, 397-98, 450 P.2d 957 (1969) (affirming denial of motion for directed verdict because reasonable minds could differ on factual issue, which was jury’s duty to resolve).
Officer Greeley’s case perfectly illustrates the majority’s error, specifically how he was passed over on the October 7, 1997 certification. Two vacancies under the 25 percent rule resulted in the promotion of Kevin Haistings, who would not have been eligible for promotion had the City followed the rule of five. See CP at 512, 565. Officer Greeley, or one of four other candidates—Sam Hurst, Gene McNaughton, Lee Lamb, and William Moran—might have received that promotion instead of Haistings had the unlawful 25 percent rule not been followed. CP at 512. That Chief Stamper would have passed up Officer Greeley again over these other four individuals is not a foregone conclusion. Evidence supporting Officer Greeley’s promotion, which must be considered in a light favoring Greeley, see Berger, 144 Wn.2d at 102-03, includes Chief John Pirak’s deposition testimony regarding Hurst’s unsuitability for promotion. See, e.g., CP at 686 (testifying that he had received “some input having to do with [Hurst’s] anger and also with the prior discipline history”); id. at 691 (referencing his notes from the promotional process and testifying Captain Metz recommended against promoting Hurst).29 Additional evidence includes the fact Chief Stamper passed over each of the four individuals—Hurst, McNaughton, Lamb, and Moran—just as many times as Stamper passed over Officer Greeley’s name. See CP at 486-92, 503-14, 564-65 (passing up Hurst, McNaughton, Lamb, and Moran, although they *852ranked 7th, 18th, 26th, and 32nd on the exam, respectively). Moreover Chief Pirak affirmed “Chief Stamper received a number of letters from sergeants and lieutenants and captains supporting Officer Greeley for promotion.” CP at 691. And despite some negative testimony with respect to Officer Swank’s potential for promotion, Chief Pirak affirmed Swank “was given good marks in a number of areas.” CP at 683.
Therefore I cannot agree reasonable minds could reach but one conclusion, namely that Officers Greeley and Swank would not have been promoted had the City followed the rule of five. The only way to so conclude is to give the City the benefit of the doubt on all factual inferences. This is precisely what the appropriate review of summary judgment prohibits.
The City failed to provide uncontroverted evidence that Greeley and Swank would not have been promoted had the PSCSC followed the rule of five instead of its unlawful 25 percent rule. In fact there is no such evidence in the record. Viewing the record in a light most favorable to the nonmoving parties Greeley and Swank, summary judgment is plainly inappropriate. The rule of five requires these cases be remanded for trial.
Ill
The legislature envisioned a system whereby police officers and other civil servants would be promoted based on merit. The majority’s expansion of the “rule of three” to the “rule of five” embraces a system which promotes the idea “it’s not what you know, it’s who you know.” Chief Stamper attested to this attribute:
If you are out of sight and out of mind the system that we have in place now can make it difficult for you to get the kind of consideration, plus or minus, that you deserve as a viable candidate for promotion. So to the Captains we’re saying getting [sic] acquainted, to the officers we’re saying get acquainted. I’ve urged police officers, Sergeants and Lieutenants *853for that matter, to make the rounds of the SLT [police department’s Senior Leadership Team], to visit with them, to make appointments.
CP at 624. This is precisely what the legislature sought to prohibit. Moreover summary judgment is plainly inappropriate when issues of material fact are as patently obvious as they are in Greeley’s and Swank’s cases.
I therefore dissent.
Owens and Fairhurst, JJ., concur with Sanders, J.
The two other recognized purposes, namely providing tenure to police officers and establishing a commission to administer the civil service system to ensure negative employment decisions were “not made for political or religious reasons,” Reynolds, 62 Wn.2d at 725, are not implicated here.
The City did not seek review of this issue, so it is now the law of the case. See State v. Strauss, 119 Wn.2d 401, 412, 832 P.2d 78 (1992).
Though we examine chapter 41.12 RCW here, the statutes are virtually identical and serve the same purposes. See Local 404, 90 Wn.2d at 831 (quoting Reynolds v. Kirkland Police Comm’n, 62 Wn.2d 720, 725, 384 P.2d 819 (1963)).
Nor is the majority’s “silent acquiescence” argument persuasive. Majority at 835 n.13. At least three cities—Seattle, Issaquah, and Kirkland—adopted rules of 25 percent contemporaneously with the statutory amendments to chapter 41.12 RCW cited by the majority. See Seattle Ordinance 107791, § 7(6) (Nov. 6, 1978); Issaquah Ordinance 2056, § 1 (Jan. 17,1995); Kirkland Ordinance 3405, § 1 (Feb. 15, 1994). If the legislature “silently acquiesce[d]” in those interpretations, the same argument could be made that the rule of 25 percent is equally lawful. But see Seattle Police Officers Guild v. City of Seattle, 113 Wn. App. 431, 439, 53 P.3d 1036 (2002) (rule of 25 percent violates chapter 41.12 RCW). In point of law, however, the legislature has already spoken through statute and it is of no consequence that the legislature did not see fit to amend the statute to “cure” a municipal statutory violation. Rather it is a judicial function to apply the statute and protect legal entitlements arising under the statute. See Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 812, 16 P.3d 583 (2001).
The majority is correct to recognize these affirmative action policies did not specifically adversely affect these petitioners; however the policies are illustrative of the City’s willingness to stray from chapter 41.12 RCWs mandate to avoid consideration of anything other than the candidate’s “merit, efficiency, and fitness” as evidenced by performance on the civil service exam. RCW 41.12.050(4).
The statutory limitation of the number of names certified for promotion to six expires on July 1, 2004. See Laws of 2002, ch. 354 §§ 203, 411. After such time the director of personnel “shall normally certify ... a list of names equal in number to six more than there are vacancies to be filled,” subject to some exceptions, none of which apply here. WAC 356-26-060.
The rule of five rather than the unlawful 25 percent rule was used in each of the five certification requests involving Sergeant Dennis Ramm. See CP at 456-60, 462-72. Approval of the rule of five therefore removes any genuine issue of *849material fact to his case. I would however reverse summary judgment in Ramm’s case for the reasons articulated in Part I of this opinion. See supra pp. 842-46.
Chief Stamper requested certification for two sergeant vacancies on July 16, 1996. The PSCSC unlawfully certified 17 names, 11 more than authorized under the rule of five. Officer Greeley was the highest ranked officer on this list. Of the two officers who were promoted, one officer would not have been certified had the PSCSC followed the rule of five. CP at 481, 503-05, 564.
Another instance occurred when Chief Stamper requested certification on August 5, 1997, for three sergeant vacancies. The PSCSC unlawfiilly certified 14 names, 7 more than authorized under the rule of five. Of the three who were promoted, two officers would not have been certified had the PSCSC followed the rule of five. CP at 483, 509-11, 564.
On November 13, 1996, Chief Stamper again requested certification for 10 sergeant vacancies. The PSCSC unlawfully certified 23 names, 9 more than authorized under the rule of five. The record indicates Chief Stamper filled only nine of the vacancies. Of the nine officers who were promoted, two officers would not have been certified had the PSCSC followed the rule of five. CP at 482, 506-08, 564.
Finally on October 7, 1997, Chief Stamper requested certification for two sergeant vacancies. The PSCSC unlawfully certified 12 names, 6 more than authorized under the rule of five. Of the two officers who were promoted, one officer would not have been certified had the PSCSC followed the rule of five. CP at 484, 512-14, 564.
The first of these two occurrences was on certifications dated May 18, 1999, in which the PSCSC certified 14 names for two vacancies, 7 more than authorized by the rule of five. Chief Stamper promoted two officers, one of whom would not have been certified had the PSCSC followed the rule of five. CP at 524, 544-45, 548, 568. The other instance was on certifications dated January 19, 2000, in which the PSCSC certified 15 names for five vacancies, 6 more than would be authorized by the rule of five. Chief Stamper promoted five officers, one of whom would not have been certified had the PSCSC followed the rule of five. CP at 528, 553-54, 568.
Chief Pirak also testified Hurst “had conflicts with other people, tended to take on the issue, the heat of the moment, sort of the emotionalism of whatever the squad felt versus trying to keep the balance.” CP at 691.