Opinion
No. 61637-4-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-39447-0, Mary Yu, J., entered May 5, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Cox and Appelwick, JJ.
The legislature has the power to enact statutes that apply retroactively unless it violates a constitutional provision. Except for instances of such infirmity, an amendment operates retroactively if the legislature intends it to do so, or where the legislation is curative. In a 2007 bill making corrections to the public retirement systems, the legislature enacted an amendment clarifying prior legislation that suspended employee and employer contributions to the LEOFF Plan 1 retirement system. That legislation was retroactive and complied with the single subject rule articulated in article II, section 19 of the Washington Constitution. We affirm the trial court's summary judgment dismissal.
FACTS
Retired firefighters, James Fossos and John Church, made employee contributions from their salaries to the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF) Plan 1. RCW 41.26.080 provides for the funding of the system, requiring both employers and employees to contribute 6 percent to the retirement pension. In 2000, an actuarial assessment of LEOFF Plan 1 found that the plan was funded at 139 percent. The legislature amended the statute suspending employee and employer contributions after June 30, 2000. The legislature did this by enacting section 907 of House Bill (HB) 2487, the 2000 supplemental budget.
Laws of 2000, 2nd Spec. Sess., ch. 1, § 907.
Laws of 2000, 2nd Spec. Sess., ch. 1, § 907.
HB 2487, as originally introduced in the House of Representatives on January 14, 2000, was entitled "AN ACT Relating to fiscal matters." Section 907, amending RCW 41.26.080, effectively gave employers and employees a holiday on their contributions to the plan by adding the following language under subsection (2):
1 House Journal, 56 Leg., Reg. Sess., at 59 (Wash. 2000).
No employer or member contribution is required after June 30, 2000, unless the most recent valuation study for law enforcement officers' and firefighters' retirement system plan 1 indicates the plan has unfunded liabilities.
2 House Journal, 56 Leg., 2nd Spec. Sess., at 2120 (Wash. 2000); Laws of 2000, 2nd Spec. Sess., ch. 1, § 907 (alteration in original).
2 House Journal, 56 Leg., 2nd Spec. Sess., at 2120 (Wash. 2000); Laws of 2000, 2nd Spec. Sess., ch. 1, § 907 (alteration in original).
Fossos and Church (collectively, Fossos) brought a declaratory judgment action seeking to have section 907 declared unconstitutional because it violated article II, section 19, requiring that "[n]o bill shall embrace more than one subject, and that shall be expressed in the title." After determining that Fossos had no standing to seek a declaratory judgment, the trial court permitted Fossos to amend his complaint to bring this mandamus action.
Wash. Const. art. II, § 19.
Thereafter, the legislature enacted Substitute Senate Bill 5174, "corrections in the public retirement systems," to clarify the contributions holiday authorized in the 2000 amendment, and declared it to be remedial, curative, and retroactive. After the bill was enacted, the State moved to have Fossos' action declared moot.
Suspecting that the 2007 clarifying amendment was a result of communications between the Attorney General's (AG) office and various governmental entities, including the legislature, Fossos sought discovery relating to those communications. The State refused, asserting legislative, executive, and attorney-client privileges and provided a privilege log. The trial court held that no legislative or executive privilege was applicable and found the privilege log insufficient for it to make a determination regarding the assertion of attorney-client privilege. Accordingly, the trial court conducted an in camera inspection. The trial court found the asserted attorney-client privilege applicable and denied Fossos' motion to compel.
Fossos appeals, alleging that both the 2000 and 2007 amendments are unconstitutional because they violate article II, section 19. Fossos also alleges the trial court erred in applying the attorney-client privilege to communications between the AG and various governmental entities, including legislative staff. Finally, Fossos seeks an award of attorney fees.
The State cross-appeals alleging that Fossos lacked standing to bring the mandamus action, or in the alternative, is time barred by both the statute of limitations and the doctrine of laches.
ANALYSIS
Constitutionality of Provision
When introduced on January 12, 2007, Senate Bill (SB) 5174 was entitled:
AN ACT Relating to technical corrections in the public retirement systems, amending RCW 41.04.410, 41.04.440, 41.04.445, 41.04.450, 41.05.320, 41.24.400, 41.26.195, 41.31A.020, 41.37.010, and 41.45.203; reenacting and amending RCW 6.15.020; and creating a new section.
1 Senate Journal, 60 Leg. Reg. Sess., at 73 (Wash. 2007).
1 Senate Journal, 60 Leg. Reg. Sess., at 73 (Wash. 2007).
At the request of the Select Committee on Pension Policy, the Senate Ways and Means Committee introduced a substitute bill on February 1, 2007. The substitute bill changed the title and included the amendment to the LEOFF Plan 1 funding statute. Senate Substitute Bill (SSB) 5174 was entitled:
AN ACT Relating to corrections in the public retirement systems; amending RCW 41.04.410, 41.04.440, 41.04.445, 41.04.450, 41.05.320, 41.24.400, 41.26.080, 41.26.195, 41.31A.020, 41.37.010, and 41.45.203; reenacting and amending RCW 6.15.020; and creating a new section.
1 Senate Journal, 60 Leg. Reg. Sess., at 178 (Wash. 2007) (emphasis added).
1 Senate Journal, 60 Leg. Reg. Sess., at 178 (Wash. 2007) (emphasis added).
On April 21, 2007, the bill passed, with the Governor signing it on May 15, 2007.
Laws of 2007, ch. 492 § 8.
Fossos argues that SSB 5174 violated the single subject rule of article II, section 19, as the amendment to the RCW 41.26.080(2) is a substantive change, while the other changes addressed in the bill are technical ones. We disagree.
While the bill initially emerged as a technical correction to the retirement plans, the title was amended less than three weeks later when the legislature recognized that corrections needed to be made to the statute. The fact that the other changes were technical in nature does not change the subject of the bill into one with multiple subjects. All changes, technical or substantive, were made to provisions of the retirement plans, the subject of the bill.
C.f. Brown v. Owen, No. 81287-0, 2009 WL 564432 (Wash. March 5, 2009) (discusses at length the appropriate limitations on the judiciary when reviewing legislative proceedings).
The purpose of article II, section 19 is to "`assure that the members of the legislature and the public are generally aware of what is contained in proposed new laws.'" Here, a reader of SSB 5174 would be apprised of its subject matter by reading its title. Moreover, the subject matter — corrections to the public retirement systems — clearly falls within the ambit of the title. We find the 2007 enactment constitutional.
Patrice v. Murphy, 136 Wn.2d 845, 853, 966 P.2d 1271 (1998) (quoting State v. Thorne, 129 Wn.2d 736, 757, 921 P.2d 5124 (1996)).
Indeed, Fossos, a member of the public, testified at the hearing before the House.
Retroactive Application
We agree with the State's contention that this issue is now moot. The 2007 enactment was a clarification of previous legislation from 2000 and such legislation is generally retroactive and effective from the original date of the amendment. Fossos argues that Washington law generally provides that statutory changes operate prospectively. But Fossos' claim is intertwined with his argument that the 2007 legislation is itself unconstitutional and that an unconstitutional amendment cannot cure a previously unconstitutional enactment. Fossos acknowledges that there are circumstances in which statutory amendments apply retroactively — where they are curative, clarifying or correcting an ambiguous statute. But he argues that such corrections are generally enacted soon after the original legislation. Without any citation to authority, Fossos contends that because more than six years have passed, those cases are distinguishable. We disagree.
Johnson v. Morris, 87 Wn.2d 922, 925, 557 P.2d 1299 (1976).
McGee Guest Home, Inc. v. Dep't of Social Health Servs., 142 Wn.2d 316, 324, 12 P.3d 144 (2000).
Johnson v. Centennial West. Inc., 99 Wn.2d 555, 562, 663 P.2d 482 (1983) (1982 act could retroactively affect 1981 Product Liability and Tort Reform Act); In re Pers. Restraint of Matteson, 142 Wn.2d 298, 12 P.3d 585 (2000) (corrective legislation enacted in 2000 after the inadequate provision was enacted in the 1999 budget bill); Pierce County v. State, 159 Wn.2d 16, 148 P.3d 1002 (2006) (correction occurred one year after the initial enactment in 1994 to a 1993 enactment.)
Washington case law is clear that an article II, section 19 violation can be remedied by subsequent legislation. In Morin v. Harrell, a statute violating the constitution was amended several times after its enactment in 1988. The Morin court found those amendments cured any constitutional defect. Moreover, in Matteson, the principle is clearly enunciated that subsequent legislation may cure a constitutional defect.
Morin v. Harrell, 161 Wn.2d 226, 164 P.3d 495 (2007); Matteson, 142 Wn.2d 298.
161 Wn.2d 226, 164 P.3d 495 (2007).
Morin, 161 Wn.2d at 236.
142 Wn.2d 298, 12 P.3d 585 (2000).
It is well established that the legislature can enact a curative statute while there is pending litigation on that issue. Here, the legislature did so in response to on-going litigation in superior court. The fact that the controversy did not arise until six years after enactment, does not remove the legislature's plenary power to enact retroactive legislation designed to cure and clarify previous legislation. The legislature adopted the clarifying language soon after the controversy arose in this matter. We find the 2007 legislation is retroactive.
Farm Bureau Fed'n v. Gregoire, 162 Wn.2d 284, 174 P.3d 1142 (2007) (matter pending in superior court when curative act enacted); Matteson, 142 Wn.2d 298 (after briefs were filed in the Supreme Court).
Attorney-Client Privilege
The trial court conducted an in camera inspection of the State's documents and found them to be protected from disclosure as attorney-client communications. The court stated:
[T]here is an attorney-client relationship that was established between each of the recipients of the e-mail and the Assistant Attorney General's Office through specific assistant attorneys. The Attorney General is the statutory attorney for the State of Washington which includes the legislative branch. There is no authority prohibiting assistant attorney generals from having an attorney-client relationship with more than one agency in circumstances where litigation affects more than one entity, provided that there is no conflict of interest.
The documents at issue relate to this specific litigation, and contrary to Plaintiffs' assertions, are not broad policy discussions arising from the Attorney General's own interest separate from the clients.
Fossos argues that the attorney-client privilege does not exist here because five of the six entities listed on the privilege log were not parties to this litigation. We disagree. As Fossos asserts in his brief, "It is not possible to ascertain the true nature of each relationship simply by looking at the log." But, here, the trial court did review the documents and determined that they were subject to the attorney-client privilege. As noted in Amoss v. University of Washington:
Once a party claims that the attorney-client privilege applies, "the trial judge determines whether the facts justify the allowance of the claim." (Footnote omitted.) 8 J. Wigmore, Evidence § 2322, at 630 (rev. 1961). The trial judge in this case determined that the memoranda reflected legal advice confidentially conveyed by [Senior Assistant Attorney General James] Wilson to President [William] Gerberding and the Board. Mr. Wilson's memoranda were based solely on facts which were in the record, the briefs, and the exhibits, and were available to Dr. [Pamela] Amoss during the proceedings. Presumably weighing the need to preserve attorney-client confidentiality against Dr. Amoss' need for disclosure under the discovery rules, the judge decided that the memoranda should not be produced. In these circumstances, we cannot find that the judge erred.
Like the trial judge in Amoss, the judge here determined that the facts justified the State's claim of privilege. We do not have copies of the underlying matter and therefore must rely on the trial court's judgment.
Fossos also argues that there is no need for the documents as there is no attorney-client privilege between the AG's office and members of the legislature. Fossos asks this court to hold that unless an attorney has specifically been retained by the legislature under RCW 43.10.045, no attorney-client relationship exists and thus the communications may not be deemed privileged.
This argument has no merit. RCW 43.10.045 provides:
The legislature may employ or retain counsel of its own choosing. However, the legislature shall notify the attorney general whenever it makes a decision to use the services of such counsel to represent it or any of its members in a particular judicial or administrative proceeding. With respect to any such proceeding where the legislature has not so notified the attorney general, the attorney general shall represent the legislature until so notified. For purposes of this section, "legislature" means the senate and house of representatives together. The major purposes of this section are to confirm and implement in statute law the constitutional power of the legislative branch to select its own counsel.
The State asserts that each of the recipients of the e-mails had a role to play in its defense of this lawsuit. Inasmuch as the defense of this suit turned on whether the 2000 and 2007 amendments were constitutional, it necessarily involves investigation of the legislature's actions in enacting those acts. Further, the fact that there were multiple communications with multiple persons does not necessarily destroy application of the attorney-client privilege. The United States Supreme Court has held that such a privilege may apply to multiple communications between mid level and lower level employees and an attorney advising those at a higher corporate level. Here, the communications were between different deputy AGs, two different legislative offices (Senate and House of Representatives), and three members of three different executive offices (Actuary, Office of Financial Management, and Department of Retirement Systems). Each of those parties' participation was crucial to defending the Fossos' litigation.
Upjohn Co. v. United States, 449 U.S. 383, 394-95, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).
Because Fossos is not the prevailing party, he is not entitled to attorney fees under the common fund theory and his request is denied. The trial court's summary judgment dismissal is affirmed.
WE CONCUR.