Opinion
No. 60738-3-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-15780-8, John P. Erlick, J., entered June 15, 2007.
Affirmed by unpublished per curiam opinion.
This is a proceeding in mandamus to compel certain city, county, and state agencies and their officials to conduct an election to fill positions on the board of the Seattle Monorail Project. But the Seattle Monorail Project is in the process of winding up its affairs and dissolving. No election is therefore required or necessary. Moreover, there is no showing that Mark Durbin had standing to maintain the action. Accordingly, Durbin's petition for writ of mandamus was properly dismissed. We affirm.
FACTS
In November 1997, voters in the city of Seattle passed Initiative 41, creating a public development authority to build an expanded monorail public transportation system within the city limits. In 2002, the Washington State Legislature enacted an enabling statute which authorized voters from cities with a population over 300,000 to create a "city transportation authority" to build a public monorail within that city. Ch. 35.95A RCW.
Seattle residents voted again in favor of the monorail in November 2002, creating a Seattle city transportation authority known as the Seattle Monorail Project (SMP). Seattle voters also approved of the selection process for the governing body of SMP, consisting of both elected and appointed board members. The initial phase of the project involved the construction and operation of a 14-mile monorail line. Construction was scheduled to begin in 2005.
In September of 2005, the Board of Directors of the SMP authorized the submission of Proposition 1 to the Seattle voters, which provided, among other things, that in the event voters did not approve Proposition 1, "the Board shall terminate [SMP] as quickly as practicable, consistent with maximizing the realized value of SMP assets and efficiently discharging all obligations of [SMP]." On November 8, 2005, the majority of Seattle voters rejected Proposition 1. Following the election, the Board took steps to wind up its affairs and terminate the SMP.
Over the next year or so, Durbin sued the SMP and others seeking to stop the dissolution of the agency. Two of his suits were dismissed on summary judgment. Durbin then filed this mandamus action in superior court aimed at compelling the city, the county, and the state to place five monorail board positions on the ballot for the Seattle elections in November 2007. The list of defendants included the Seattle Ethics and Elections Commission and its executive director, the King County Records, Elections and Licensing Services and its director, and the Washington Secretary of State. Durbin did not personally serve any of the defendants. Durbin filed an amended mandamus action two weeks later, stating that he had mailed copies to the defendants. The city, the county, and the state all moved to dismiss the action, arguing that Durbin lacked standing, failed to properly serve the defendants, and did not state a valid claim for relief. The superior court entered judgment in favor of the defendants, dismissing Durbin's action with prejudice. In reaching that result, the court determined that Durbin "failed to establish standing"; "failed to serve the parties"; and was "not entitled to the relief he seeks as a matter of law." The court also found the action frivolous, sanctioned Durbin $500, and ordered that he not file any further actions involving the monorail project unless he paid the sanction and received prior permission from the court. The court explained its ruling as follows:
This Court finds that Mr. Durbin has abused the litigation powers by his filing this fourth lawsuit regarding the Monorail project without factual or legal basis. Mr. Durbin was previously found to lack standing, a finding affirmed by the Court of Appeals. Mr. Durbin is collaterally estopped from challenging that finding in this lawsuit, given an absence in change in circumstances. The instant lawsuit is a continuation of Mr. Durbin's abuse of the litigation process and lacks factual and legal basis and is frivolous and in violation of Civil Rule 11 and sanctionable under 4.84.185 of R.C.W.
Durbin appeals.
ANALYSIS
Durbin contends the superior court erred by dismissing his mandamus action. He relies on the election contesting statute, RCW 29A.68.011, which provides that any judges of the superior court or Court of Appeals, or any justice of the Washington Supreme Court, can order the correction of an error that is about to occur in the printing of ballots. Durbin claims that failing to provide for the election of new board members is such an error. Thus, Durbin argues the superior court should have granted his petition of writ of mandamus. We disagree.
A writ of mandamus may be issued to "compel the performance of an act which the law especially enjoins as a duty resulting from an office." RCW 7.16.160. A writ is appropriately granted in cases where there is not a "plain, speedy and adequate remedy in the ordinary course of law," upon affidavit of a beneficially interested party. RCW 7.16.170; Paxton v. City of Bellingham, 118 Wn. App. 439, 444, 119 P.3d 373 (2005).
Durbin contends the superior court erred in determining Durbin's mandamus action warranted dismissal because he failed to properly serve any of the defendants. Even if we were to agree with Durbin, the superior court listed three separate reasons for dismissing the mandamus action — (1) Durbin "failed to serve the parties"; (2) Durbin "failed to establish standing"; and (3) Durbin was "not entitled to the relief he seeks as a matter of law." We need not address in detail the arguments about service since the latter two grounds are supported by the record and the prevailing law.
Durbin contends the superior court erred in determining that he lacked standing to bring the action. Supporting this contention, Durbin in his opening brief states simply that he is a "qualified elector" without further elaboration. In his reply brief, however, Durbin asserts for the first time that the defendants failed to avail themselves of the mechanisms provided in RCW 29A.08.810 to challenge his status as a registered voter in Seattle. Durbin also argues for the first time that he lacks a "traditional residential address" as described in another voter registration statute, RCW 29A.08.112. But contentions may not be presented for the first time in a reply brief. Dickson v. United States Fid. Guar. Co., 77 Wn.2d 785, 787-88, 466 P.2d 515 (1970). And even assuming these arguments had been properly preserved, they miss the mark.
RCW 29A.68.011, the election contesting statute on which Durbin relies, provides that an action to contest an alleged election error is initiated by filing an "affidavit of an elector." To be an elector, one does not have to be a registered voter. Tennent v. Stacy, 48 Wn.2d 104, 106-07, 291 P.2d 647 (1955). "Registration statutes neither add to nor detract from the qualifications" that must be met to be an elector. Tennet, 48 Wn.2d at 106. Electors must "have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote." Const. art. 6 § 1. "'Lived in,' as used in the constitution, is the same as residence, domicile and place of abode." Freund v. Hastie, 13 Wn. App. 731, 734, 537 P.2d 804 (1975).
Here Durbin lacked standing because he failed to prove that he resides in a Seattle precinct or indeed anywhere. He provided an address in his complaint, but it was the same address he used in his previous three suits, a mailbox at a private mail facility in Ballard. Durbin provided no evidence that he actually resides in Ballard. As far as the record reveals, Durbin has never disclosed where he lives. Nor is there any indication he lacks a "traditional residential address" as discussed in RCW 29A.08.112. Under the circumstances, Durbin has not shown that he qualifies as an "elector" in Seattle or meets the residency requirements for bringing an action under RCW 29A.68.011. The superior court thus correctly determined that Durbin failed to establish standing for purposes of claiming an election error under RCW 29A.68.011.
In addition, Durbin has failed to show that mandamus is appropriate relief in this situation. Mandamus is an appropriate means to compel a governmental official to comply with the law when the claim is clear and there is a duty to act. Walker v. Munro, 124 Wn.2d 402, 407-08, 879 P.2d 920 (1994).
In 2007, the legislature amended RCW 35.95A.120 to provide that, once a city transportation authority, such as the SMP, is dissolved, a board member's elected term is extended until the dissolution is complete. Laws of 2007, ch. 516, § 12(6). Although the amended statute was not yet effective when the superior court ruled, it took effect before the fall election. And, contrary to Durbin's argument, elections held prior to the date the amendment went into effect would still fall within the ambit of the legislation. RCW 35.95A.120(2) as amended now reads:
A city transportation authority is dissolved and terminated if all of the following events occur before or after July 22, 2007:
(a) A majority of the qualified electors voting at a regular or special election determine that new public monorail transportation facilities must not be built.
(Emphasis added). Because the amended statute eliminates the need to elect any new SMP board members, there was no duty to act.
Durbin also contends the superior court erred by failing to enter written findings of fact and conclusions of law, but the court decided the matter in a summary fashion on the written pleadings. Under the circumstances, no findings were required. Anderson v. Island County, 81 Wn.2d 312, 316, 501 P.2d 594 (1972); Smith v. Skagit County, 75 Wn.2d 715, 718, 453 P.2d 832 (1969). In any event, the basis for the superior court's ultimate holding is clearly evident here.
There was no error.
Durbin also assigned error to the imposition of sanctions under CR 11 and RCW 4.84.185. But he does not support this assignment of error with any legal authority. Arguments not supported by relevant citation of authority need not be considered. Ellwein v. Hartford Co., 142 Wn.2d 766, 778 n. 9, 15 P.3d 640 (2001). In any event, the decision to impose sanctions under the rule or statute is reviewed for abuse of discretion. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994). We find no abuse of discretion here.
Affirmed.