Opinion
No. 51408-3-I.
Filed: March 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 98-2-00803-1. Judgment or order under review. Date filed: 11/13/2002. Judge signing: Hon. George Bowden.
Counsel for Appellant(s), Benjamin D Cushman, Cushman Law Offices PS 924 Capitol Way S Ste 203, Olympia, WA 98501-1278.
Counsel for Respondent(s), Steve Edwin Dietrich, Attorney at Law 905 Plum St. Bldg 3, PO Box 40113, Olympia, WA 98504-0113.
Traci Joy Friedl, Office of The Attorney General, 1125 Washington St. SE, Pob 40100, Olympia, WA 98504-0001.
Michael Charles Held, Attorney at Law, 2918 Colby Ave, Everett, WA 98201.
A party alleging a constitutional claim must have standing as a result of actual or imminent injury. Here, in opposition to the State's summary judgment motion, One Way Construction, Inc., provided no evidence that the Washington State Department of Transportation's administrative sanctions injured or imminently would injure One Way. Thus, the trial court properly awarded summary judgment based on One Way's lack of standing. We affirm.
High Tide Seafoods v. State, 106 Wn.2d 695, 701-02, 725 P.2d 411 (1986); Allen v. Wright, 468 U.S. 737, 751-52, 104 So. Ct. 3315, 82 L.Ed.2d 556 (1984).
FACTS
One Way contracted to build a bridge on South Lake Stevens. Consistent with state and federal laws, the contract required One Way to award a percentage of subcontract jobs to businesses owned by women or minorities. When One Way disregarded this requirement, the WSDOT, which administered the contract, sought to impose administrative sanctions against One Way. As a sanction for One Way's disregard for the set-aside requirement, an administrative law judge (ALJ) ordered a $10,000 fine and a 30-day suspension on One Way's privilege to bid on government contracts. One Way served the suspension, but refused to pay the fine.
Once Way then filed a complaint in superior court that appealed the ALJ's order and challenged the constitutionality of the state and federal set-aside programs. One Way moved for partial summary judgment, and the State responded and cross-moved for partial summary judgment on One Way's constitutional claims.
In its motion, the State argued that One Way lacked standing to bring the constitutional claims because it had not suffered an injury. In opposition to the motion, One Way identified the $10,000 fine as an imminent injury sufficient to support standing. But One Way did not offer evidence of injury caused by the 30-day bidding suspension. Nor did it offer evidence of imminent injury that would result from future administrative sanctions. The trial court denied One Way's motion and granted the State's motion. The trial court also granted Snohomish County's motion for summary judgment against all of One Way's claims. The County argued for summary judgment based on One Way's failure to serve its tort claim on the clerk of the council, as required by the Snohomish County Code.
Several months after the trial court ruled on summary judgment, One Way dismissed its Administrative Procedure Act claim in exchange for the State's dismissal of its cross-complaint to enforce the $10,000 fine.
DECISION A. Summary judgment in favor of the State
To oppose the State's motion, One Way needed to present some evidence that it had been injured or imminently would be injured by the fine or 30-day bidding suspension, or that it imminently would be injured by future sanctions. Although the evidence of the unpaid fine should have sufficed to show that One Way faced imminent injury, this evidence is no longer relevant because the State has agreed not to enforce the fine.
Bras v. California Public Utilities Comm'n, 59 F.3d 869, 872 (9th Cir. 1995).
To achieve reversal of summary judgment against its constitutional claims, therefore, One Way must now show that it presented some evidence, not mere allegations, of actual injury caused by the 30-day suspension, or imminent injury resulting from future sanctions. But the record shows that One Way did not offer any such evidence to the trial court. One Way presented no evidence that it was able and ready to bid on government contracts during the suspension, or even that a government contract was available to be bid on during that time. Rather, One Way's opposition to the State's motion merely repeated the conclusory allegation that the bidding suspension injured One Way.
On appeal, One Way again merely asserts that the bidding suspension caused it to lose business or lose the opportunity to do business. One Way does not indicate when or how it presented any evidence of injury caused by the suspension. Naturally, One Way cites no authority for the proposition that the imposition of a bidding suspension by itself constitutes an injury sufficient to establish standing.
Because One Way failed to present evidence of injury, it failed to establish standing, and thus the trial court had no jurisdiction to consider One Way's constitutional claims. For this reason, the trial court properly granted summary judgment for the State.
High Tide, 106 Wn.2d at 702.
B. Summary judgment in favor of Snohomish County
The trial court granted summary judgment in favor of Snohomish County because One Way failed to comply with a clear statutory claim filing requirement. One Way argues that the trial court erred because the County should have been estopped to assert the claim filing requirement as a defense.
Snohomish County Code 2.90.050 and RCW 4.96.020 required One Way to file its tort claim with the clerk of the county council before One Way could sue the County on that claim. But One Way did not file its claim with the clerk of the council; rather, One Way filed it with the County's Risk Management Office. Thus, One Way failed to comply with section 2.90.050, and the trial court properly dismissed One Way's claim.
Dismissal for failure to comply with the claim filing requirement was proper notwithstanding One Way's estoppel argument. As we recently held in King ex rel. King v. Snohomish Co., `[e]quitable estoppel cannot lie where a statute clearly states the procedure for service of process. The same rule applies to a clear procedural filing requirement.'
King ex rel. King v. Snohomish Cy., 105 Wn. App. 857, 864, 21 P.3d 1151 (2001) (county not estopped to assert defense of failure to comply with SCC sec. 2.90.050), reversed on other grounds by King v. Snohomish Co., 146 Wn.2d 420, 424-25, 47 P.3d 563 (2002) (county waived affirmative defense by its delay).
We affirm.
ELLINGTON and SCHINDLER, JJ., concur.