Opinion
No. 36112-4-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-2-01972-2, Gary Tabor, J., entered February 21, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Bridgewater, JJ .
UNPUBLISHED OPINION
Arthur West appeals an order granting summary judgment to the Washington Public Ports Association (WPPA) and Robert Van Schoorl, WPPA's former president. West argues that the trial court erred when it (1) did not require WPPA to respond to his discovery requests that he made after the summary judgment hearing, (2) struck three documents he submitted as evidence, (3) held that West did not have standing under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, and (4) granted summary judgment to the WPPA. We affirm.
Facts
West submitted a public records request to WPPA on September 25, 2006. Four days later, WPPA sought clarification. West clarified his request on October 6, and then, four days later, WPPA responded that it would make the requested records available to West by October 24.
West commenced a lawsuit against WPPA on October 20, 2006. He alleged generally that WPPA violated the Public Records Act, ch. 42.56 RCW, and sought a declaratory judgment stating that WPPA is a public agency subject to the Public Records Act and a host of other laws.
On January 5, 2007, WPPA moved for summary judgment and to strike three documents that West had attached to his pleadings. West responded to the motion on January 22. The trial court held a summary judgment motion hearing on January 26. Then, on February 2, West filed a document entitled "Motion to Compel Admissions and Production and Motion for Default." Clerk's Papers (CP) at 292. WPPA responded with a brief in which it argued that the discovery request was untimely. The trial court held a motion hearing on February 9, apparently to resolve the continuance and discovery issue, but our record does not contain a ruling on this matter.
The hearing is shown on the trial court's docket. WPPA contends that the trial court granted summary judgment in an oral ruling that day. West did not make the report of proceedings part of our appellate record to dispute this claim. RAP 9.2(a), 9.3, 9.5(a) (declaring appellant's duty to perfect record for appeal). We do not review matters outside our record. Weems v. N. Franklin Sch. Dist., 109 Wn. App. 767, 779, 37 P.3d 354 (2002) (citing State v. McFarland, 127 Wn.2d 335, 899 P.2d 1251 (1995)).
Also on February 9, 2007, the trial court entered a written order granting summary judgment to WPPA. The trial court held that West lacked standing to request a declaratory judgment under RCW 7.24.020. It also dismissed West's claims that (1) the WPPA violated the Open Public Meetings Act of 1971 (OPMA), ch. 42.30 RCW, (2) the WPPA made an "Unconstitutional Expenditure of Public Funds," (3) the WPPA violated the Public Records Act, (4) the trial court should enter a "Global Declaration" that the WPPA is subject to the Public Records Act, (5) the WPPA violated the State Environmental Policy Act, ch. 43.21C RCW, and (6) Van Schoorl had a conflict of interest. The trial court reasoned that these six claims warranted dismissal because West failed to present facts showing a justiciable controversy existed and failed to state a claim upon which relief may be granted. Thus, the trial court granted WPPA's motion for summary judgment, granted the WPPA's motion to strike, and dismissed the claims without prejudice. The trial court denied West's motion for reconsideration.
The trial court did not consider two declarations that West submitted on February 8, 2007, which was after the summary judgment hearing and one day before the trial court entered its written ruling granting summary judgment. The decision to reject declarations filed after a summary judgment hearing, but before the final written ruling, lies within the trial court's sound discretion. Brown v. Peoples Mortgage Co., 48 Wn. App. 554, 559, 739 P.2d 1188 (1987). Although West refers to his declarations in his brief, he has not appealed the decision to reject them. A commissioner of our court issued a ruling striking the declarations. Accordingly, we do not rely on the declarations because they are not a part of the record at the trial court or on appeal.
A commissioner of our court ruled that this matter is appealable as a matter of right because the order effectively discontinued the action. See Barnier v. Kent, 44 Wn. App. 868, 872 n. 1, 723 P.2d 1167 (1986).
Analysis
Continuance
West argues that the trial court erred by not requiring WPPA to respond to his February 2 discovery requests. But the proper issue before us is whether the trial court erred when it declined to grant a continuance in order to allow West to conduct additional discovery. West made this request after the summary judgment hearing on January 26, which is not contained in our record, but before the February 9 written ruling, which is in our record. Such discovery may have proven relevant if the trial court had not yet made a final summary judgment ruling or if it heard a motion to reconsider an earlier ruling. The record before us is insufficient to address this issue.
The party seeking review, West, has the burden to perfect the record so that, as the reviewing court, we have all relevant evidence before us. Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (citing State v. Vazquez, 66 Wn. App. 573, 583, 832 P.2d 883 (1992)). An insufficient appellate record precludes review of the alleged errors. Bulzomi, 72 Wn. App. at 525 (citing Allemeier v. Univ. of Wash., 42 Wn. App. 465, 472-73, 712 P.2d 306 (1985), review denied, 105 Wn.2d 1014 (1986)).
Here, West has not provided us with an adequate record. At a minimum, such record would include the written ruling denying his request for a continuance or the report of proceedings from the motion hearing containing the trial court's oral decision. Upon the record provided, we cannot determine whether West proved to the trial court good cause to conduct additional discovery nor can we evaluate the trial court's rationale for denying West's request. See CR 56(f); Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990) (outlining rules regarding requests for a continuance to conduct further discovery in order to oppose a summary judgment motion; determination is fact-based). Accordingly, we do not address West's discovery challenge on its merits.
Evidentiary Ruling
Next, West appeals the trial court's decision to strike three documents that he submitted. It appears that the trial court struck (1) the WPPA's 1960 Articles of Incorporation, (2) a check dated December 2006, and (3) a letter that West wrote to the Attorney General.
On appeal, WPPA argues that the trial court properly struck nine of West's attachments. The trial court did not explain what documents it struck in its written ruling and the oral ruling is not part of our appellate record. But the trial court indicated that it granted WPPA's motion to strike and the written motion (the only relevant portion of our record) contends only that the trial court should strike these three attachments. Accordingly, we review whether the ruling was erroneous regarding the three contested documents and consider the remaining six documents in our review of summary judgment because they were apparently before the trial court.
We review a trial court's ruling on a motion to strike for abuse of discretion. King County Fire Prot. Dists. No. 16, et al. v. Housing Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994) (citing Orion Corp. v. State, 109 Wn.2d 621, 638, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 (1988)). A trial court may base its summary judgment ruling only on "pleadings, depositions, answers to interrogatories, . . . admissions on file [and] affidavits, if any." CR 56(c). Further:
[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
CR 56(e) (emphasis added).
Here, the three attachments are admissible for summary judgment purposes only if they are "sworn or certified copies" of documents referred to in West's affidavits. CR 56(e). These three documents are neither sworn nor certified. Accordingly, the trial court did not abuse its discretion when it declined to consider them when ruling on summary judgment. Standing Under the UDJA
West challenges the trial court's dismissal of his UDJA claims, in which he asked the trial court to declare that the WPPA is a public agency that is subject to the Public Records Act, the OPMA, and the State Environmental Policy Act. Because West lacked standing to bring these claims, the trial court did not have jurisdiction to consider them and their dismissal was appropriate.
Our legislature crafted the UDJA in order "to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." RCW 7.24.120. The UDJA thus allows a trial court to issue a declaratory judgment if "a judgment or decree will terminate [a] controversy or remove an uncertainty." RCW 7.24.050; see also RCW 7.24.010. The act does not, however, allow trial courts to issue advisory opinions except on exceptionally rare occasions where the public's interest in the resolution of an issue is overwhelming and the issue is adequately briefed and argued. See To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 410-17, 27 P.3d 1149 (2001) (discussing justiciability under UDJA), cert. denied, 535 U.S. 931 (2002).
As under all laws, courts lack jurisdiction to consider an action if a party does not have standing to bring the lawsuit. High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P.2d 411 (1986) (citing Grove v. Mead Sch. Dist. 354, 753 F.2d 1528 (9th Cir.), cert. denied, 474 U.S. 826 (1985)), appeal dismissed by 479 U.S. 1073 (1987). Standing is roughly defined as a personal stake in the challenge. See High Tide Seafoods, 106 Wn.2d at 701-02. We review a party's standing de novo. Wolstein v. Yorkshire Ins. Co., 97 Wn. App. 201, 206, 985 P.2d 400 (1999).
We review whether a party has standing to bring a particular action by applying a two-part test:
First, we ask whether the interest asserted is arguably within the zone of interests to be protected by the statute or constitutional guaranty in question. Second, we consider whether the party seeking standing has suffered from an injury in fact, economic or otherwise. Both tests must be met by the party seeking standing.
Branson v. Port of Seattle, 152 Wn.2d 862, 875-76, 101 P.3d 67 (2004) (citations omitted).
The only allegations relevant to standing are West's assertions that (1) he is "a landowner and a citizen conducting business in Thurston County Washington and in the Cities of Tumwater and Olympia, with standing to maintain this action," CP at 11; (2) he is "a property owner in a port district whose representative[, Tim Sheldon,] has requested an [Attorney General's Opinion] on the issue of the status of the WPPA," CP at 269; (3) the issue of whether WPPA is a public agency is "of statewide significance and of broad public import," CP at 58; and (4) West "submitted the required standing letter under Reiter v. Wal[l]gren, 28 Wn. 2d 872, 184 P.2d 571 (1947)" regarding the claim of unconstitutional expenditure of public funds, CP at 61. These assertions are insufficient to confer standing because they fail to show that West has "suffered from an injury in fact," a basic requirement for invoking a court's jurisdiction. Branson, 152 Wn.2d at 876.
We address the assertions of standing contained in West's pleadings in turn. First, being a landowner and citizen is insufficient to confer on a person standing to commence a lawsuit over the question of whether an entity like WPPA is a public agency subject to a host of statutes. If status as a citizen or consumer were sufficient to confer standing, the entire doctrine would be superfluous. See Am. Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 7, 802 P.2d 784 (1991). And a plaintiff's status as a landowner will cause a litigant to have standing only if the lawsuit involves some harm to the land or the owner's property rights, thus fulfilling the "injury in fact" prong of the standing test. See, e.g., Orion Corp. v. State, 103 Wn.2d 441, 455, 693 P.2d 1369 (1985) (a landowner has standing if his property rights were allegedly infringed). West does not demonstrate how WPPA's actions implicate his property rights and, therefore, his status as a landowner does not confer standing.
Second, a state senator's decision to ask for an Attorney General's Opinion is irrelevant to the question of whether one of that senator's constituents has standing to commence a lawsuit. Standing analysis focuses on litigants', not politicians', interests. See Orion Corp., 103 Wn.2d at 455. Third, West suggests that he has presented a question of public interest for which standing requirements are relaxed. In State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972), our Supreme Court has held that appellate courts may decide a question of public interest that has been adequately briefed and argued if doing so would benefit the public and government officers. Assuming the questions posed are of public interest, West's briefing and the inadequate appellate record make it inappropriate for us to attempt to address West's claims on the merits.
Last, West's reliance on taxpayer standing and Reiter is misplaced. In Reiter, our Supreme Court held that, without statutory authorization, a taxpayer does not have standing to challenge the legality of public officers' acts unless he first requests that a proper public official sue on behalf of all taxpayers. 28 Wn.2d at 876-77. But Reiter's holding does not mean, conversely, that a taxpayer has standing simply because he wrote a letter demanding that the Attorney General's Office commence litigation. Rather, to sue, "the taxpayer must show that he or she has a unique right or interest that is being violated, in a manner special and different from the rights of other taxpayers." Am. Legion Post No. 32, 116 Wn.2d at 7. West has not done this. Moreover, to the extent that West seeks an advisory opinion regarding a matter for which he lacks standing, Washington courts may not issue such advisory opinions. To-Ro Trade Shows, 144 Wn.2d at 416 (holding that a court may not deliver an advisory opinion under the UDJA if standing and other justiciability factors are not satisfied, barring a substantial public interest that is adequately briefed). Accordingly, West does not have standing to seek a declaratory judgment and we may not address his alleged public interest claims in an advisory opinion. Summary Judgment
Last, West appeals the trial court's grant of summary judgment to WPPA on his claims that (1) it violated the OPMA, (2) it made unconstitutional expenditures of public funds, and (3) its president had a conflict of interest. He has abandoned his public records request claim. And he does not dispute WPPA's evidence that it responded to his request with a timely letter asking for clarification, followed by the disclosures West sought.
As stated above, we do not issue advisory opinions. Commonwealth Ins. Co. of Am. v. Grays Harbor County, 120 Wn. App. 232, 245, 84 P.3d 304 (2004) (citing Wash. Beauty Coll., Inc. v. Huse, 195 Wash. 160, 164, 80 P.2d 403 (1938)). Thus, even if the record before us contained sufficient evidence, which it does not, we may not issue a ruling answering the merits of West's claims absent a real justiciable controversy. Cena v. Dep't of Labor Indus., 121 Wn. App. 915, 924, 91 P.3d 903 (2004) (citing Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000); To-Ro Trade Shows v. Collins, 100 Wn. App. 483, 490, 997 P.2d 960 (2000), aff'd, 144 Wn.2d 403, 27 P.3d 1149 (2001)), review denied, 153 Wn.2d 1015 (2005).
A. Standard of Review
We review an appeal from summary judgment de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)); see also Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001).
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)). Here, West is the nonmoving party. After the moving party meets its initial burden to show an absence of material fact, the burden shifts to the party with the burden of proof at trial, here West. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). When that party responds to the summary judgment motion, he cannot rely on mere allegations contained in the pleadings. Young, 112 Wn.2d at 225. Instead, he must offer affidavits or other means provided in CR 56 to set forth specific facts showing that there is a genuine issue for trial. Young, 112 Wn.2d at 225-26.
B. Open Public Meetings
In his complaint, West (1) sought a declaratory judgment that WPPA is subject to the OPMA, ch. 42.30 RCW, (2) asserted that WPPA violated the OPMA without specifying how, and (3) requested an injunction to prevent future violations. Above, we held that West lacks standing to bring a declaratory judgment action. And we hold that summary judgment was appropriate for the remaining OPMA claims.
Unless an exception applies, "[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency." RCW 42.30.030. "Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of [the OPMA] by members of a governing body." RCW 42.30.130.
Here, West did not present a genuine issue of material fact regarding this open meetings claim because he did not support his claim of an OPMA violation. Instead, he asserted that the OPMA applies to the WPPA and requested an advisory opinion confirming his assertion. Courts are prohibited from issuing advisory opinions. Commonwealth Ins. Co. of Am., 120 Wn. App. at 245. And the record contains no evidence of an OPMA violation. "[B]are assertions that a genuine material [factual] issue exists will not defeat a summary judgment motion in the absence of actual evidence." Trimble v. Wash. State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000). Evidence of an OPMA violation could include affidavits showing that a meeting was held on a particular day but that it was closed to the public or otherwise did not conform to the OPMA's requirements. See, e.g., Protect Peninsula's Future v. Clallam County, 66 Wn. App. 671, 833 P.2d 406 (1992), review denied, 121 Wn.2d 1011 (1993). Assuming, without deciding, that WPPA is subject to the OPMA, West did not present a genuine issue of material fact regarding an OPMA violation and, therefore, the trial court did not err when it entered summary judgment on this claim.
West had an opportunity to obtain such evidence through the discovery process before WPPA moved for summary judgment but apparently declined to do so.
C. Unconstitutional Expenditure of Public Funds
West also claimed that WPPA made an unconstitutional expenditure of public funds for lobbying activities. In support of this claim, he provided evidence of a WPPA disclosure that it spent money to hire lobbyists.
It is unclear what law West relies on in bringing this claim. Our constitution sets requirements for the expenditure of public funds, including (1) a prohibition on paying money out of the state treasury without an appropriation, (2) a requirement of timely payments and specific sums and objects of an appropriation, and (3) a prohibition on lending or giving public money or credit. Wash. Ass'n of Neighborhood Stores v. State, 149 Wn.2d 359, 365-66, 70 P.3d 920 (2003) (citing Wash. Const. art. VIII, § 4); Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, 652, 62 P.3d 462 (2003) (quoting Wash. Const. art. VIII, § 7). It is unclear how West's claim challenges WPPA's compliance with these, or other, constitutional requirements and his evidence does not raise a genuine issue of material fact regarding whether WPPA violated any law when it hired lobbyists. The trial court did not err in entering summary judgment on this claim.
West also argues that WPPA's lobbying activity exceeded the authority delegated to it under chs. 39.84 and 53.06 RCW. We decline to address this issue because it was not properly before the trial court. RAP 2.5(a).
D. Conflict of Interest
Finally, West alleged that Van Schoorl had a conflict of interest because he was simultaneously WPPA's president, an Olympia port commissioner, and budget director for the Department of Natural Resources. Van Schoorl was defeated as port commissioner in the November 2007 general election and is no longer WPPA's president. We may decline review of an issue if it is moot because we are unable to provide effective relief. Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 73, 442 P.2d 967 (1968); Pentagram Corp. v. City of Seattle, 28 Wn. App. 219, 223, 622 P.2d 892 (1981); see also To-Ro Trade Shows, 144 Wn.2d at 411 (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)). Courts cannot provide effective relief regarding the alleged conflict of interest here because such a conflict no longer exists. Thus, the conflict issue is moot and we decline to review it.
Attorney Fees and Costs
WPPA requests West pay its attorney fees and costs for having to respond to what it characterizes as a frivolous appeal. RAP 18.1; RCW 4.84.185. An appeal is frivolous if it raises no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal. Andrus v. Dep't of Transp., 128 Wn. App. 895, 900, 117 P.3d 1152 (2005), review denied, 157 Wn.2d 1005 (2006). Although West does not prevail, this appeal is not frivolous. He arguably has raised issues of public interest concerning alleged expenditures of public funds. Moreover, the conflicts issue is moot, not wholly devoid of merit. Accordingly, we decline to award fees and costs.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.