X X 2

3 Expedite Hearing Set Oct 4, 2013, 9:00 A.M. Judge Price

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THURSTON COUNTY 4 ____________________________________________________________________________
5 6 7 8 9 10 11 12

____________________________________________________________________________ ) ARTHUR WEST, ) plaintiff, ) ) Vs. ) No. 13-2-01969-5 ) ESSB 5034 WORK GROUP, ) JOHN LANE, KELLY COOPER, ) PLAINTIFF'S REPLY KRISTY WEEKS, RICK GARZA, ) IN SUPPORT OF THE MOTION INGRID MUNGIA, DREW SHIRK, ) FOR COMPLIANCE WITH THE KATHY RYAN, WASHINGTON ) OPEN PUBLIC MEETINGS ACT STATE LIQUOR CONTROL ) BOARD, WASHINGTON STATE, ) defendants ) ____________________________________)_______________________________________

Comes now the plaintiff, Arthur West, and respectfully submits

13 14 15 16 17 18 19 20 21

the following reply in response to the defendants filing of October 2, 2013. INTRODUCTION This is an action to compel compliance with the Open Public Meetings Act (OPMA) on the part of a work group (or committee) undeniably created by the Liquor Control Board pursuant to the mandatory language of ESSB 5034, section 141, which compels the Washington State Liquor Control Board (LCB) to work with the
1
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

department of health and the department of revenue to develop recommendations regarding the interaction of I-502 with the existing Medical Marijuana laws. In light of the of the strong language, broad remedial intent and the all-encompassing terms of the definitions of the OPMA contained in RCW 42.30.020, it is apparent that the entity created by the Liquor Control Board in response to the mandate of ESSB 5034 section 141 is a public agency subject to the OPMA. Since the ESSB 5034 workgroup was created by the Board as a direct result of the mandatory terms of statute, ESSB 5034, and since it is a committee or sub agency charged with the conduct of the publics business, its deliberations of must be conducted openly, publicly and in conformity with the Sunshine laws of the State of Washington. While the defendants attempt to deny the obvious, (that the workgroup was created pursuant to the statute requiring the creation of the workgroup) and have zealously attempted to exclude the activities of the workgroup from their perception of the definition of a public entity, the clear letter of the OPMA defining both sub agency and committee unambiguously sweeps the ESSB 5034 Workgroup within its ambit. The one case the defendants have cited in support of their position, Salmon for All v. Department of Fisheries, 118 Wn. 2d 270, 821 P.2d 1211 (1991), is completely irrelevant as it involved a single member directed agency (the department of fisheries) and interstate negotiations under a federal interstate compact (the Columbia River
2
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Compact) expressly ruled by the federal court to be beyond the reach of State OPMA laws, due to it being a federally created entity. (see United States v. Oregon, 699 F.Supp. 1456 (D. Or. 1988). In the Salmon case, the Court held that since the department of fisheries was governed by a single agency director (unlike the Liquor Control Board) and since the agency was a federally created interstate compact, (unlike the ESSB 5034 Work group, which is a creation of State law) there was no governing body or creation of the people of the State for the OPMA to apply to under those circumstances. A far more appropriate precedent to apply the facts of this matter is Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001), where the 9th Circuit held that the Lakewood Adult Entertainment Task Force, a creation of the Lakewood planning advisory board which held several closed meetings to analyze adult entertainment within the city and prepare a report, was indeed subject to the OPMA despite a lack of any explicit statutory mandate or any rule or policy making authority. As a committee created by the express terms of law, acting on behalf of the LCB, the ESSB 5034 Workgroup is also, beyond any reasonable argument, subject to the requirements of the OPMA. It is important to realize that if the Court does uphold the OPMA in this case the sky will not fall, no onerous inconvenience or expense will be placed upon the Board, it will simply have to allow the public to attend and observe the deliberations of the committee established to fulfill the mandate of ESSB 5034 Section 141. This is not too much to ask of the public servants of the people of the State of Washington.
3
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

ARGUMENT I THE OPMA HAS SOME OF THE STRONGEST LANGUAGE AND BROADEST REMEDIAL INTENT OF ANY EXISTING LAW It is important to recognize that the OPMA has some of the strongest language and most expansive remedial intent of any existing law, and that it contains an express statement that it must be interpreted liberally to effectuate its remedial intent. The purpose of the OPMA is to ensure that public bodies make decisions openly. See RCW 42.30.010; Miller v. City of Tacoma, 979 P.2d 429, 432 (Wash. 1999) (en banc). As stated in the statute: The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. The people of this state do not yield their sovereignty to the agencies which 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 retain control over the instruments they have created. RCW 42.30.010. The Liquor Control Board believes that it has the right to decide what is good for the people to know about their deliberations and what
4
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

is not good for them to know about the workings of the ESSB 5034 workgroup. They believe that they, not the people are the only ones entitled to remain informed and in control of the peoples business. Under such circumstances the intent of the Sunshine laws and the principle of rule of the people exist only as theoretic anachronisms. II THE COURTS MUST CONSTRUE THE OPMA LIBERALLY IN KEEPING WITH ITS STRONG LANGUAGE AND REMEDIAL INTENT The Supreme Court has declared that these provisions of the OPMA employ some of the strongest language of any legislation. Equitable Shipyards, Inc. v. State of Washington, 93 Wn. 2d 465, 611 P.2d 396 (1980). Further, to meet the Act's purpose, courts applying its provisions are to construe it liberally. See RCW 42.30.910 "The purposes of this chapter are hereby declared remedial and shall be liberally construed."; Miller, 979 P.2d at 434. Some of the purposes of the OPMA as articulated by the courts are: To guarantee public access to and participate in activities of their representative agencies. Mead School Dist. No. 354 v. Mead Education Assn., 85 Wn. 2d 140,530 P.2d 302 (1975), To allow the public to view the decision making process at all stages. Cathcart v. Andersen, 85 Wn. 2d 102, 530 P.2d 313 (1978), To prevent public officials from avoiding public scrutiny and accountability, Eugster v. City of Spokane, 128 Wn. App. 1, 114 P.3d 1200 (Div. 3 2005), and, To give the public ready access
5
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

to first hand knowledge of the deliberations and decisions of public agencies where the executive session does not apply. Snohomish County Improvement Alliance v. Snohomish County, 61 Wn. App. 64, 808 P.2d 781 (Div. 1 1991). Requiring the ESSB 5034 work group to deliberate publicly would be consistent with the above determinations and squarely within the central intent of the Legislature in enacting the OPMA. III THE EXPRESS TERMS OF ESSB 5034 SECTION 141 AUTHORISE THE LCB TO ESTABLISH A COMMITTEE AND/OR SUB-AGENCY AS DEFINED IN THE OPMA The defendants arguments in this case are 30 years out of date as they ignore the effect of the 1983 amendments to the OPMA which greatly expanded the definition of governing body to include any committee that acts on behalf of the governing body (such as the ESSB 5034 workgroup) regardless of whether it has final policy making or rule making authority. In 1983 the legislature amended the definition of governing body to include committees thereof by adding or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. Laws of 1983, ch. 155, 1. A committee is a body of persons delegated to consider, investigate or take action up and usually to report concerning some matter of business. The purpose of this amendment was to extend the coverage of the OPMA to committees, subcommittees and other groups like the
6
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

workgroup created under the authority of ESSB 5034. As the 9th Circuit eplained in Clark Lakewood disputes that the Task Force is a governing body, citing to Refai v. Central Washington University, 742 P.2d 137 (Wash. Ct. App. 1987). In Refai, the Washington Court of Appeals held that the faculty senate executive committee was not a governing body of Central Washington University. The Refai court, however, applied an older, narrower definition of governing bodies which limited governing bodies to those groups that make policy or rules. Id. at 144. Refai itself states that the faculty senate executive committee would probably have been considered a governing body under the then recently enacted new definition of governing bodies. See id. at 145 n.5. That new definition is the definition we apply today to conclude that Lakewood's Task Force is a governing body of a public agency. Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) Just so, the Board in this case dispute that the ESSB 5034 work group is a governing body, for the very same reasons cited by the City of Lakewood in Clark. Just so, this disputation is not well taken and the court should rule in accord with Clark, that under the (30 year old) new definitions in the law, the ESSB 5034 work group is an entity subject to the requirements of the OPMA. Even under the old definition, in Cathcart v. Andersen, 85 Wn. 2d 102, 530 P.2d 313 (1978), the Supreme Court found that (although there was no express statute authorizing its creation) the University of
7
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Washington law school faculty was delegated certain rule making and policy powers and thus was a governing body. The Court found that the board of regents had delegated authority to the president and he to the law faculty, and that it did not matter that the board of regents has ultimate authority since decisions of the law faculty were conditional only in an abstract hypothetical sense and the board of regents adopted faculty actions almost as a matter of course. Accordingly, the Court held that the OPMA applied to law faculty meetings. This decision is exactly on point in the present case because the under the express terms of ESSB 5034 The Liquor Control Board must work with the department of revenue and the department of health (AKA the Workgroup) to develop policy recommendations which must be submitted to the Legislature. Under such circumstances it does not matter that the Board has ultimate authority since the policy decisions of the Workgroup are conditional only in an abstract hypothetical sense and the board is required by the express terms of law to adopt the work groups policy determinations as a matter of course and convey them to the Legislature, where they again, as a matter of course, will be enacted into law. This conclusion is reinforced by the expressed intent of the work group to engage in stakeholder input on the proposed policy determinations, actions which place it squarely and undeniably within the center of the zone of interests that the OPMA protects. Thus the ESSB 5034 work group is a direct product of a specific
8
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11

state statute requiring the LCB to work with certain other agencies to develop recommendations, which must be submitted to the Legislature by January 1, 2014. Both the expansive remedial intent and the explicit letter of the law require committees and/or sub agencies like the ESSB 5034 work group to comply with the minimal requirements of the Open Public Meetings Act. To rule otherwise is to banish the very process of legislation to secret smoke filled back rooms where the public interest takes a back seat to gerrymandering and influence peddling such as appears to be indicated by the March 28, 2013 Emails on file in this case. IV PLAINTIFF WEST IS A CITIZEN WITHIN THE ZONE OF INTERESTS PROTECTED BY THE OPMA AND IS PARTICULARLY INTERESTED IN THE ABOLITION OF MEDICAL MARIJUANA PROPOSED BY THE WORKGROUP As a recognized medical marijuana patient, plaintiff West is

12 13 14 15 16 17 18 19 20 21

specifically impacted by the abolition of medical marijuana envisioned by the ESSB 5034 work group and Mr. Garza and Marr of the Liquor Control Board. Each of the 7 specific policy determinations required to be included in the recommendations mandated by ESSB 5034 Section 141 has the potential to adversely impact plaintiff in a manner that is not shared by the general public. In addition, plaintiff is squarely within the class protected within the remedial zone of interests of the Open Public Meetings Act, those
9
PLAINTIFFS RESPONSE IN SUPPORT ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

who seek to be informed of the actions of the agencies that serve them. Such a determination is consistent with RCW 42.30.130, which provides Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of this chapter by members of a governing body. Without an order from this court, plaintiff, and all those similarly situated will be irreparably harmed by the actions of a public entity acting in disregard of the fundamental foundations of democratic society, that the public remain informed of the actions of the agencies that serve them. The lack of adherence to the law by the LCB is underscored by the appearance of a Staff Attorney who is apparently employed in direct violation of Article III Section 21 of the Constitution of the State of Washington1, which requires that the Attorney General be the exclusive adviser of all State agencies and officials. Plaintiff respectfully moves that the declaration filed by this unlawfully employed de facto officer be stricken as fruit of the poisoned tree. Done October 3, 2013, in Olympia Washington. _____________________ ARTHUR WEST

1

18 the legal adviser of the state officers, and shall perform such other duties as may be prescribed by
law

SECTION 21 ATTORNEY GENERAL, DUTIES AND SALARY. The attorney general shall be

19 20 21

10

PLAINTIFFS RESPONSE IN SUPPORT

ARTHUR WEST 120 State Avenue NE #1497 Olympia, WA. 98501