Standing Brief

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON, DIVISION II _______________________________________________ _ _______________________________________________ _ ) ARTHUR WEST ) No. 36112-4-II appellant ) ) APPELLANT’S Vs. ) SUPPLEMENTAL WPPA, et al ) BRIEF Respondents ) _______________________ )______________________ CITIZEN STANDING AND EQUALITY BEFORE THE LAW HAVE BEEN FUNDAMENTAL ELEMENTS OF DEMOCRATIC SOCIETY SINCE 500 B.C. Although ancient in its origins, the concept of standing has been aptly described in recent jurisprudence as “one of the most amorphous (concepts) in the entire domain of public law” Flast v. Cohen, 392 U.S. 83, 99 (1968) quoting Hearings on S. 2097 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd Sess. 498 (1966). In the context of property owners and taxpayers rights, it is apparent the bundle of entitlements conception and the more general legal framework of Hofeldian legal relations in which it is grounded only too 1

often deteriorate into the status of “a stack of dry beans unesteemed by those who have lost the recipe for its use.” (see Duncan and Michaelman, Are Property and Contracts Efficient?, 8 Hoffstra law review, 711 at 751, (1980) cited by Oren Brachta). While the law, at least nationally, in some recent decades of democratic rule has evinced a long term trend to liberalized standing and a retreat from the orthodox turn of the century attempts at a unified field theory of legal relations (Berger, Standing to sue in public actions: Is it s constitutional requirement? 78 Yale L.J. 816 (1969); Davis, the Liberalized law of standing, 37 U. CHI. L. Rev. 450 (1970) Jaffe, The citizen as litigant in public cases, the non-Hofeldian or ideological plaintiff 116 U. Pa. law review, 1033, 1968), in this particular case, even a standard classical analysis is sufficient for appellant to prevail. If the State, through its coercive power has the right of levying taxes on a property holder, a corresponding duty coincides of lawful and constitutional expenditure of such coerced funds. Likewise, the taxpayer, through his duty of paying tax, obtains a claim-right to constitutional and lawful expenditures of the tax revenue. This basic fundamental, standard and orthodox claim-right is a large portion of what is asserted in this case. And there is a long line of historic and democratic precedent for this Court to recognize its continued exercise. For over two and a half Millenia, dating back to the earliest history of western democracy, the right of a citizen to participate in the lawful 2

governance of the state-or polis-and to enjoy equality before the law has been a common feature of every “democratic” society. Nearly every society that we look to for the precursors of modern egalitarian democracy shares one basic commonality, the right of a citizen to petition and participate in Court proceedings. Thus, through the tripartite ideals of isonomia, isegoria, and koinonia, Athenian democracy recognized a brand of equality before the law, freedom of speech, and community identity. Isonomia, in particular, was crucial to the democracy in two ways; first all citizens had equal rights, including political rights, under the law, and second, all citizens were equal in their subjection to the law. ( see M. Oswald, Nomos and the Beginnings of Athenian Democracy, Greenwood, 1969, P, 96-136) Significantly, as early as the fifth Century B.C., through graphē paranomon, a citizen of Athens had the ability to bring a public action to enforce conformity of the laws, much as citizens in this State would today if proper standing doctrines were applied. As the Father of History informs us of the workings of democracy in the ancient world… The rule of the people has the fairest name of all, equality (isonomia), and does none of the things that a monarch does… power is held accountable, and deliberation is conducted in public. (Herodotus 3.80, quoting Otanes C. 492BC) In accord with this ancient tradition, Article 1, section 1 of the Washington Constitution provides as follows: All political power is inherent in the people, and governments derive their just powers from the consent 3

of the governed, and are established to protect and maintain individual rights. Similarly, the Public Records Act, RCW 42.56.030, serves to further the public policy, now over two and a half millennia old, that under the “rule of the people”, “power is held accountable” and “deliberation is conducted in public”… The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. In this context it must be seen that a ruling on the status of the WPPA is not only necessary for an adjudication of the claim-right to lawful disposition of state tax revenues, but also to further the paramount goal of the Washington Constitution, The PRA, and democratic government itself that the most ancient and fundamental ideals of popular democracy are not abridged in modern practice by mere labels or political expediency. In passing, it should be noted that the application of the Telford test to other organizations of the Shadow Government has been taken as a serious and public issue by at least one Law review article (see Telford, Casting Sunlight

on Shadow Governments, Leslie Marshal, SLR 24:107, P. 138-168), and one Superior Court magistrate. (See attached order of September 3, 2008, King County Cause No. 07-2-02399-0)

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The WPPA has been repeatedly allowed to plead in the capacity of a private “person” in the Courts of this State. Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, (2003), Futurewise v. W. Wash. Growth Mgmt. Hearings Bd. (WPPA as Intervener) Docket Number: 80396-0 File Date: 07/31/2008. For the WPPA, a non-municipal corporation, to enjoy such special rights and privileges to maintain actions and expend taxpayer revenue immune from judicial review of its operation poses a clear case of violation of Article I, section 12 of the Washington Constitution, commonly referred to as the privileges and immunities clause.

APPELLANTS TAXPAYER STATUS, HIS UNDISPUTED DEMAND UPON THE ATTORNEY GENERAL, AND THE DIRECT BEARING OF THE ACTIVITIES OF THE WPPA ON STATEWIDE ISSUES OF COMMERCE AND INDUSTRY ALL WEIGH HEAVILLY IN FAVOR OF STANDING As a landowner (20 Enchantment Lane, Mason County) in a Port District whose tax dollars are spent to support the operations of the WPPA, who has requested action from the State, it is undisputable that appellant has standing to maintain this action. In Washington, it is black letter law that a taxpayer has standing to challenge the legality of the acts of public officers if he first requests or demands that a proper public official bring suit on behalf of all taxpayers. Tacoma v. O’Brien, 85 Wn.2d 266, 269, 534 P.2d 114 (1975);Reiter v. Wallgren, 28 Wn.2d 872, 876-77, 184 P.2d 571 (1947). Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) "

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In addition, as the Farris Court determined, when the issues are of serious public importance such as those presented in this case, questions of standing must be given a less draconian interpretation… Where a controversy is of serious public importance and immediately affects substantial segments of the population and its outcome will have a direct bearing on the commerce, finance, labor, industry or agriculture generally, questions of standing to maintain an action should be given less rigid and more liberal answer. Washington Natural Gas C. v. PUD No. 1, 77 Wn.2d 94, 96, 459 P.2d 633 (1969); Accord, Vovos v Grant, 87 Wn.2d 697, 701, 555 P.2d 1343 (1976). In another context, we recently decided to not dismiss a case for failure to join an indispensable party and instead reached the substantive issue presented where that "issue is a matter of continuing and substantial interest, it presents a question of a public nature which is likely to recur, and it is desirable to provide an authoritative determination for the future guidance of public officials.” CathcartMaltby. v. Snohomish County., 96 Wn.2d 201, 208, 634 P.2d 853 (1981). That rationale is derived from some of our decisions involving moot questions, E.G., In Re Patterson, 90 Wn.2d 144, 149, 579 P.2d 1335 (1978), and similar considerations lead us to address the substantive issues presented here. Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) " While the underlying basis for this rule has not been fully articulated, appellant believes that it is necessary for the Washington State

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standing doctrine to be a constitutionally viable and reasonably engrafted development of the law, in accord with centuries of established practice.

THE RIGHT TO PETITION IS A RECOGNIZED AND FUNDAMENTAL RIGHT IN THE STATE OF WASHINGTON The Court in Richmond v. Thompson, 130 Wn. 2d 368, at 383, 922 P.2d 1343,(1996) has applied the Gunwall analysis to interpret Article 1, section 4 of the State Constitution in a manner consistent with the First Amendment, yet it has also recognized, more recently, in Fire Protection District v. City of Moses Lake, 145 Wn. 2d 702, 42 P.3d 394 (2002) that the right to petition is a fundamental right under the Washington Constitution. As has long been recognized in this State… The people have a right to adopt any system of government they see fit to adopt. In its workings, it may not meet their expectations; it may be unwieldy and cumbersome; it may tend to inconvenience and prodigality; it may be the expression of a passion or sentiment rather than of sound reason; but it is the people's government and, until changed by them, must be observed by the legislature and protected by the courts. State ex rel. Brislawn v. Meath, 84 Wash. 302, 320, 147 P. 11 (1915). The right of a taxpayer to petition to ensure his taxes are lawfully spent is just as fundamental-or perhaps more so as the rights to recognized in Brislawn, or Save Our Park v. Hordyk, 71 Wn. App. 84, 856 P.2d 734, (1993). When any doctrine or public official acts, even with the best of intentions, to thwart a a taxpayer’s effort to petition for redress in relation to issues of statewide significance involving tax derived revenue, and 7

commerce and industry generally, such a decision must be carefully scrutinized, a liberal standing rule applied, and any laws or doctrines justifying denial must pass constitutional muster.

WASHINGTON STATE STANDING DOCTRINE MUST BE INTERPRETED IN CONSONANCE WITH CLEARLY ESTABLISHED FIRST AMENDMENT PROTECTIONS Any doctrine, including that of standing must be weighed according to the Supreme Law of the land, the Constitution of the United States, as well as the provisions of Article 1 of the Washington State Constitution. As the Supreme Court of the United States has stated, "The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms." We followed that view in United Mine Workers v. Pennington, 381 U.S. 657, 669 -671. The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, 393 U.S. 483, 485 ; Ex parte Hull, 312 U.S. 546, 549 . It is difficult to determine how all political power may be said to reside in the people according to Article I, section 1 of the State Constitution if a landowner is unable, due to a restrictive standing doctrine, to even seek a determination as to how his taxes are spent by a private organization. THE RIGHT OF A LANDOWNER TO PETITION FOR REDRESS IS AS OLD AS THE LAW ITSELF AND A NATURAL OR 8

RESERVED RIGHT PROTECTED UNDER THE DUE PROCESS CLAUSE AS WELL AS THE GREAT RESIDIUM OF AMENDMENTS IX AND X The right of petition for redress is as old as Norse and Anglo Saxon law itself, and may be seen as a natural right contained in the Great Residium of USCA IX and X. Even the half civilized personages of the Icelandic sagas such as Njal or Fiddler Mord, to whom trial by combat was a normal occurrence, recognized the natural fundamental right of a landowner to seek redress at the Allthing. See, generally, Brennu-Njáls saga, 13th Century A.D. (Author unknown) In its more modern English form, it took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215). Chapter 61 of Magna Carta makes it clear that if a citizen is wronged by the Crown and no remedy is forthcoming after all steps have been exhausted, that citizen may take whatever action is necessary to obtain satisfaction without fear of reprisal. As Sir Winston Churchill wrote (A History of the English Speaking Peoples (1956)) “The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national state. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject, it is to this doctrine (Magna Carta) that appeal has again and again been made, and never as yet, without success.” This is the historic essence of the statement of the Supreme Court quoted in the footnote to appellant’s motion to reconsider.

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Chapter 61 of the original (translated) 1512 Magna Carta provides a forerunner to both the right of petition and the modern claim-right described by Hofeld as follows… 61. Since moreover for God, for the improvement of our kingdom, and for the better allayment of the conflict that has arisen between us and our barons, we have granted all these [liberties] aforesaid, wishing them to enjoy those [liberties] by full and firm establishment forever, we have made and granted them the following security: namely, that the barons shall elect twenty-five barons of the kingdom, whomsoever they please, who to the best of their ability should observe, hold, and cause to be observed the peace and liberties that we have granted to them and have confirmed by this our present charter; so that, specifically, if we or our justiciar or our bailiffs or any of our ministers are in any respect delinquent toward any one or transgress any article of the peace or the security, and if the delinquency is shown to four barons of the aforesaid twenty-five barons, those four barons shall come to us, or to our justiciar if we are out of the kingdom, to explain to us the wrong, asking that without delay we cause this wrong to be redressed. And if within a period of forty days, counted from the time that notification is made to us, or to our justiciar if we are out of the kingdom, we do not redress the wrong, or, if we are out of the kingdom, our justiciar does not redress it, the four barons aforesaid shall refer that case to the rest of the twenty-five barons, and those twenty-five barons, together with the community of the entire country, shall distrain and distress us in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made; and when amends have been made, they shall obey us as they did before. To this meagre beginning are traceable, in some measure, Parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by ''petition of right.'' (not to mention the Washington State 10

Taxpayer standing doctrine) Thus, while the King summoned Parliament for the purpose of supply, the latter--but especially the House of Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as it increased in importance it came to claim the right to dictate the form of the King's reply, until, in 1414, Commons declared itself to be ''as well assenters as petitioners.'' Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed ''the inherent right to prepare and present petitions'' to it ''in case of grievance,'' and of Commons ''to receive the same'' and to judge whether they were ''fit'' to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and ''all commitments and prosecutions for such petitioning to be illegal.'' 12 Encyclopedia of the Social Sciences 98 (1934). Historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if the First Amendment read: ''the right of the people peaceably to assemble'' in order to ''petition the government.'' United States v. Cruikshank, 92 U.S. 542, 552

(1876), Today, however, the right of peaceable assembly is, in the language of the Court, ''cognate to those of free speech and free press and is equally fundamental. . . . [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions--principles which the Fourteenth Amendment embodies in 11

the general terms of its due process clause. . . . Furthermore, the right of petition has expanded. It is no longer confined to demands for ''a redress of grievances,'' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.

See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). The right extends to the ''approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.'' California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 -15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980)

RESTRICTIVE STANDING DOCTRINE FOR INDIVIDUALS VIOLATES THE PRIVILEGES AND IMUNITIES CLAUSE OF ARTICLE 4, SECTION 12 OF THE STATE CONSTITUTION WHERE THE WPPA ENJOYS SPECIAL PRIVILEGES AND IMMUNITIES In this particular case, where the WPPA has been repeatedly recognized to have standing to seek declaratory relief in the courts and administrative agencies of this State, Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, (2003), Futurewise v. W. Wash. Growth Mgmt. Hearings Bd. (WPPA as Intervener) Docket Number: 80396-0 File Date: 12

07/31/2008, the application of a restrictive standing doctrine to this appellant also runs afoul of the privileges and immunities clause of the State Constitution, which was adopted primarily to deter such favoritism. Whereas the equal protection clause of the Fourteenth Amendment (U.S. Const. amend. XIV, § 1) is concerned with majoritarian threats of invidious discrimination, the privileges and immunities clause of Const. art. I, § 12 (No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations) protects against laws serving private interests to the detriment of the majority. The concern of the state provision is the prevention of favoritism or special treatment for a few, rather than prevention of discrimination against disfavored individuals or groups. See Fire Prot. Dist. V. City of Moses Lake, 145 Wn.2d 702, 2002 For this court to allow the WPPA to occupy a specially favored position under the laws as a State sponsored and publicly funded private entity, immune from public disclosure and citizen taxpayer suit is a clear and undeniable violation of the privileges and immunities clause of the State Constitution, as well as the other clear and established precedents dating back to before the dawn of our democratic system of government. Democracy, in its most basic tenets, to this day follows the outline laid out by Heroditus and Otanes over 2,500 years ago.

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(The rule of the people has the fairest name of all, equality, and does none of the things that a monarch does… power is held accountable, and deliberation is conducted in public) This Court should reverse the ruling of the Trial Court and remand for further proceedings and discovery if it seeks to preserve these most ancient and venerable democratic traditions of the rule of the people, equality, that power be held accountable, and the deliberation of government funded organizations setting statewide policy be conducted in public. No citizen of a democratic state for over two millennia has expected anything less. Done September 15, 2008.

_______________ Arthur West

I certify under penalty of law that this document was served on counsel for respondent, Carolyn Lake, by E-mail and placing it in the U.S. Mail, this day of September 15, 2008. Done September 15, 2008.

_______________ Arthur West

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