1. The venue statute for suits against public officials, RCW 4.12.

020(2), applies here

1
and requires transfer of the claims to an appropriate county.
2
Plaintiffs again concede, as they did in their response to Defendants’ original venue
3
motion,1 that they have sued election officials in the various counties for their actions during
4
the requested recounts. Opp’n at 1-2 (“True, those claims are made.”). Plaintiffs could hardly
5

6
argue otherwise, as their Amended and Supplemental Complaint names these officials

7 explicitly as parties. Because these officials are named, RCW 4.12.020(2) applies and

8 requires these claims to be brought in the home counties of the officials. 2 RCW 4.12.020(2)
9
(noting that suits against public officers “shall be tried in the county where the cause, or some
10
part thereof, arose[.]”). As in the earlier motion to transfer venue, the one thing about venue
11
in this case that is true is that Skagit County is not an appropriate venue for any of the public
12
official Defendants.3
13

14 Plaintiffs’ argument that Eubanks v. Brown, 180 Wn.2d 590, 327 P.3d 635 (2014),

15 shows that RCW 4.12.020(2) does not apply here falls flat in the face of the distinguishing

16 facts of each case. In Eubanks, the statute did not apply because sexual harassment of co-
17
workers was not an act done in virtue of the public official’s office, a requirement for the
18
statute to apply. Id. at 602. Here, the auditors are being sued for the performance of (or the
19
alleged failure to perform) their statutory elections duties. See Am. and Supp. Compl. ¶ 4.12
20

21
1
Plaintiffs characterize Defendant’s prior motion as being “denied” by Judge Stiles. See Opp’n at 3. The Court’s
22 order makes it clear that the motion was merely “continued” so that Plaintiffs could clear up the confusion as to
which parties were actually being sued and whether the pro se Plaintiffs who failed to sign the original
23 Complaint intended to remain parties to the lawsuit. See Order on Civil (filed Dec. 13, 2018).
2
Plaintiffs contend that Defendants have conceded that RCW 4.12.020 “is not applicable to this lawsuit.” Opp’n
24 at 5. Plaintiffs are incorrect. Even a cursory review of Defendants’ prior pleadings and the present motion would
reveal that the applicability of the mandatory venue statute is the very basis for Defendants’ motions.
25
3
Plaintiffs incorporate their response from Defendants’ earlier motion. See Opp’n at 3 (“Plaintiffs will rely
primarily on their previous opposition[.]”). To the extent Plaintiffs rely on the previous briefing to guide the
26 Court, Defendants rely on Defendants’ previous arguments as well.
REPLY ON DEFENDANTS’ RENEWED JOINT CR 12(b)(3) Snohomish County
MOTION FOR TRANSFER OF VENUE - 2 Prosecuting Attorney – Civil Division
Robert J. Drewel Bldg., 8th Floor, M/S 504
3000 Rockefeller Ave
Everett, Washington 98201-4060
(425)388-6330 Fax: (425)388-6333
 (“On information and belief Plaintiffs allege that neither the letter nor the spirit of the 2018
1

2
amendments were complied with by the Defendants and that as a result the purposes of Title

3 29A have been violated.”). The court in Eubanks held that “an act done by a public officer in

4 virtue of his or her public office is an act exercising or failing to exercise the authority of the
5
office or performing the authority in an improper manner.” Eubanks, 180 Wn.2d at 600.
6
Because Plaintiffs’ claims are aimed at the execution of public officials’ duties, the
7
mandatory venue statute applies and the claims are not properly brought in Skagit County.
8
Plaintiffs interpret the mandatory venue statute in a way that would lead to an absurd
9

10
result, and the Court should reject their construction of the statute. Courts are to avoid reading

11 statutes in a manner that would lead to absurd results. Spokane County v. Dep’t of Fish and

12 Wildlife, 430 P.3d 655, 658 (2018). According to Plaintiffs, the mandatory venue statute does
13
not apply here because it only applies to suits against “a” public official. Opp’n at 7. Since
14
their suit is against five public officials from four different counties, so Plaintiffs reason, the
15
statute is inapplicable. By Plaintiffs’ logic, the murder of two or more people is lawful
16
because the homicide statute only applies to the killing of “a” human being. See RCW
17

18 9A.32.010. The mere statement of Plaintiffs’ interpretation is enough to refute its premise,

19 due to the absurd results it would produce, and their failure to cite any supporting case law
20 for their interpretation is as significant as it is unsurprising. The Court should read the plain
21
language of the mandatory venue statute and apply it as it was intended: if there is a claim
22
against a public official, that claim must be brought in the official’s home county. Eubanks,
23
180 Wn.2d at 595-96 (“If this statute applies, venue is mandatory in the county where the
24

25
cause arose.”).

26
REPLY ON DEFENDANTS’ RENEWED JOINT CR 12(b)(3) Snohomish County
MOTION FOR TRANSFER OF VENUE - 3 Prosecuting Attorney – Civil Division
Robert J. Drewel Bldg., 8th Floor, M/S 504
3000 Rockefeller Ave
Everett, Washington 98201-4060
(425)388-6330 Fax: (425)388-6333
 The question then becomes whether the claims against the various officials can
1

2
remain consolidated in one case. While it is true that a strict reading of the mandatory venue

3 statute would seem to indicate that there should be four different lawsuits in four different

4 counties, venue is waivable by Defendants. Younker v. Douglas County, 162 Wn. App. 448,
5
459-60, 258 P.3d 60 (2011). Here, Defendants offer to waive any venue objections as to
6
Thurston County only, in the interest of judicial economy, so that these claims can be resolved
7
as one coherent lawsuit. Contrary to Plaintiffs’ argument, there is nothing inconsistent (or
8
contrary to law) in invoking the mandatory venue statute to remove the case from a wholly
9

10
inappropriate venue and subsequently waiving objections to alternative yet appropriate

11 venues so that the multiple claims aggregated by Plaintiffs in this action can be resolved

12 without undue effort and the risk of conflicting rulings.

13
2. There are no claims that are separate and apart from the claims against the
14 public officials.

15 The purported claims against the county election canvassing boards are not

16 distinguishable from the claims against the public officials who comprise those boards, and
17
therefore there are no remaining claims to either litigate in Skagit County (as to any claims
18
against Snohomish County) or transfer to any other county (as to any claims against King,
19
Pierce, or Thurston County). The question is not whether the election canvassing boards are
20
agents of their respective counties, but whether the claims against the public officials on those
21

22 boards involve acts done by those officials in virtue of their office.

23 The county canvassing boards are creatures of state law. See RCW 29A.60.140(1).
24 The duties are assigned by that statute to specific public officials. Id. (“Members of the county
25
canvassing board are the county auditor, who is the chair, the county prosecuting attorney,
26
REPLY ON DEFENDANTS’ RENEWED JOINT CR 12(b)(3) Snohomish County
MOTION FOR TRANSFER OF VENUE - 4 Prosecuting Attorney – Civil Division
Robert J. Drewel Bldg., 8th Floor, M/S 504
3000 Rockefeller Ave
Everett, Washington 98201-4060
(425)388-6330 Fax: (425)388-6333
 and the chair of the county legislative body.”). Because the law assigned those duties to the
1

2
offices of specific elected officials, those duties are necessarily “in virtue of his or her office.”

3 See RCW 4.12.020(2); see also, Eubanks, 180 Wn.2d at 597 (“The common law defines acts

4 done virtute officii (in virtue of a public office) as acts a public official is authorized to
5
perform as part of his or her position, even if improperly or wrongfully performed.”);
6
Greenius v. Am. Sur. Co. of N.Y., 92 Wash. 401, 403-04, 159 P. 384 (1916) (“That is to say,
7
if his office gives him authority to act, he is acting in virtue of his office, although, in the
8
performance of a specific duty, he improperly exercises his authority.”).
9

10
To the extent the Court believes any such separate claims remain, those claims may

11 not all remain in Skagit County, as Plaintiffs now concede. Opp’n at 7. Defendants maintain

12 that the most appropriate way to resolve those claims is to consolidate them with the claims
13
against the individual public officers in Thurston County, as Defendants are again willing to
14
waive any venue objections as to Thurston County only. See Hauge v. Corvin, 23 Wn. App.
15
913, 915, 599 P.2d 23 (1979) (“The long-standing rule in this jurisdiction is that the court to
16
which venue has been changed has jurisdiction of all questions arising in the action.”).
17

18 Defendants believe that it is neither appropriate nor efficient to scatter these claims amongst

19 the various county courts. Should the Court conclude otherwise, Defendants simply note that
20 Plaintiff’s request to have the claims against Pierce County heard in Mason County is
21
inappropriate based on the information published by the Administrator of the Courts as to the
22
officially-recognized nearest judicial districts.
23

24

25

26
REPLY ON DEFENDANTS’ RENEWED JOINT CR 12(b)(3) Snohomish County
MOTION FOR TRANSFER OF VENUE - 5 Prosecuting Attorney – Civil Division
Robert J. Drewel Bldg., 8th Floor, M/S 504
3000 Rockefeller Ave
Everett, Washington 98201-4060
(425)388-6330 Fax: (425)388-6333
 3. Claims brought by pro se parties who have not signed the Amended and
1
Supplemental Complaint should be dismissed.
2
Plaintiffs concede that Art Coday has signed neither the original nor the amended
3
complaints. Opp’n at 9. His claims should be dismissed without prejudice. Counsel for
4
Revive Washington represents that Keith Swank signed the original complaint, but has
5

6
provided no evidence of that signature. In any event, Mr. Swank has not signed the Amended

7 and Supplemental Complaint, which Plaintiffs intended as the operative complaint in this

8 action. Since Mr. Swank is pro se, counsel for Revive Washington cannot sign on his behalf
9
or speak to Mr. Swank’s legal interests. Defendants have alerted Mr. Swank to his failure and
10
he has not responded, so his claims should be dismissed without prejudice. See CR 11(a).
11
CONCLUSION
12
Plaintiffs bring claims in their Amended and Supplemental Complaint against public
13

14 officers for acts done in virtue of their offices. Regardless of whether those acts were

15 performed individually or as a member of a county canvassing board, the mandatory venue

16 statute prevents any of those claims from being heard in Skagit County. Defendants are
17
willing to waive venue objections as to Thurston County Superior Court only and all claims
18
should be transferred there, to be resolved in one consolidated proceeding.
19
The claims of the pro se Plaintiffs who have not signed either the original or amended
20
complaint should be dismissed without prejudice.
21

22 Plaintiffs represent that they are in the process of properly serving King County and

23 that they will provide proof of such service prior to oral argument. To the extent Plaintiffs
24 fail to do so, all claims (if any) against King County should be dismissed.
25

26
REPLY ON DEFENDANTS’ RENEWED JOINT CR 12(b)(3) Snohomish County
MOTION FOR TRANSFER OF VENUE - 6 Prosecuting Attorney – Civil Division
Robert J. Drewel Bldg., 8th Floor, M/S 504
3000 Rockefeller Ave
Everett, Washington 98201-4060
(425)388-6330 Fax: (425)388-6333