`

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON, DIVISION II
_______________________________________________
_
_______________________________________________
_
)
ARTHUR WEST ) No. 36112-4-II
appellant )
) APPELLANT’S
Vs. ) SUPPLEMENTAL
WPPA, et al ) BRIEF
Respondents )
_______________________ )______________________

CITIZEN STANDING AND EQUALITY BEFORE THE LAW HAVE

BEEN FUNDAMENTAL ELEMENTS OF DEMOCRATIC
SOCIETY SINCE 500 B.C.

Although ancient in its origins, the concept of standing has been

aptly described in recent jurisprudence as “one of the most amorphous

(concepts) in the entire domain of public law” Flast v. Cohen, 392 U.S. 83,

99 (1968) quoting Hearings on S. 2097 Before the Subcommittee on

Constitutional Rights of the Senate Committee on the Judiciary, 89th

Cong., 2nd Sess. 498 (1966).

In the context of property owners and taxpayers rights, it is

apparent the bundle of entitlements conception and the more general legal

framework of Hofeldian legal relations in which it is grounded only too

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often deteriorate into the status of “a stack of dry beans unesteemed by

those who have lost the recipe for its use.” (see Duncan and Michaelman,

Are Property and Contracts Efficient?, 8 Hoffstra law review, 711 at 751,

(1980) cited by Oren Brachta).

While the law, at least nationally, in some recent decades of

democratic rule has evinced a long term trend to liberalized standing and a

retreat from the orthodox turn of the century attempts at a unified field

theory of legal relations (Berger, Standing to sue in public actions: Is it s

constitutional requirement? 78 Yale L.J. 816 (1969); Davis, the

Liberalized law of standing, 37 U. CHI. L. Rev. 450 (1970) Jaffe, The

citizen as litigant in public cases, the non-Hofeldian or ideological plaintiff

116 U. Pa. law review, 1033, 1968), in this particular case, even a standard

classical analysis is sufficient for appellant to prevail.

If the State, through its coercive power has the right of levying

taxes on a property holder, a corresponding duty coincides of lawful and

constitutional expenditure of such coerced funds. Likewise, the taxpayer,

through his duty of paying tax, obtains a claim-right to constitutional and

lawful expenditures of the tax revenue. This basic fundamental, standard

and orthodox claim-right is a large portion of what is asserted in this case.

And there is a long line of historic and democratic precedent for this Court

to recognize its continued exercise.

For over two and a half Millenia, dating back to the earliest history

of western democracy, the right of a citizen to participate in the lawful

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governance of the state-or polis-and to enjoy equality before the law has

been a common feature of every “democratic” society.

Nearly every society that we look to for the precursors of modern

egalitarian democracy shares one basic commonality, the right of a citizen

to petition and participate in Court proceedings. Thus, through the

tripartite ideals of isonomia, isegoria, and koinonia, Athenian democracy

recognized a brand of equality before the law, freedom of speech, and

community identity. Isonomia, in particular, was crucial to the democracy

in two ways; first all citizens had equal rights, including political rights,

under the law, and second, all citizens were equal in their subjection to the

law. ( see M. Oswald, Nomos and the Beginnings of Athenian Democracy,

Greenwood, 1969, P, 96-136)

Significantly, as early as the fifth Century B.C., through graphē

paranomon, a citizen of Athens had the ability to bring a public action to

enforce conformity of the laws, much as citizens in this State would today

if proper standing doctrines were applied. As the Father of History informs

us of the workings of democracy in the ancient world…

The rule of the people has the fairest name of all,

equality (isonomia), and does none of the things that a
monarch does… power is held accountable, and
deliberation is conducted in public. (Herodotus 3.80,
quoting Otanes C. 492BC)

In accord with this ancient tradition, Article 1, section 1 of the

Washington Constitution provides as follows:

All political power is inherent in the people, and

governments derive their just powers from the consent

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 of the governed, and are established to protect and
maintain individual rights.

Similarly, the Public Records Act, RCW 42.56.030, serves to

further the public policy, now over two and a half millennia old, that under

the “rule of the people”, “power is held accountable” and “deliberation is

conducted in public”…

The people of this state do not yield their

sovereignty to the agencies that serve them. The people,
in delegating authority, do not give their public servants
the right to decide what is good for the people to know
and what is not good for them to know. The people
insist on remaining informed so that they may maintain
control over the instruments that they have created.

In this context it must be seen that a ruling on the status of the

WPPA is not only necessary for an adjudication of the claim-right to

lawful disposition of state tax revenues, but also to further the paramount

goal of the Washington Constitution, The PRA, and democratic

government itself that the most ancient and fundamental ideals of popular

democracy are not abridged in modern practice by mere labels or political

expediency.

In passing, it should be noted that the application of the Telford test to

other organizations of the Shadow Government has been taken as a serious and

public issue by at least one Law review article (see Telford, Casting Sunlight

on Shadow Governments, Leslie Marshal, SLR 24:107, P. 138-168), and

one Superior Court magistrate. (See attached order of September 3, 2008, King

County Cause No. 07-2-02399-0)

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 The WPPA has been repeatedly allowed to plead in the capacity of a

private “person” in the Courts of this State. Wash. Pub. Ports Ass'n v. Dep't of

Revenue, 148 Wn.2d 637, (2003), Futurewise v. W. Wash. Growth Mgmt.

Hearings Bd. (WPPA as Intervener) Docket Number: 80396-0 File Date:

07/31/2008. For the WPPA, a non-municipal corporation, to enjoy such special

rights and privileges to maintain actions and expend taxpayer revenue immune

from judicial review of its operation poses a clear case of violation of Article I,

section 12 of the Washington Constitution, commonly referred to as the

privileges and immunities clause.

APPELLANTS TAXPAYER STATUS, HIS UNDISPUTED DEMAND

UPON THE ATTORNEY GENERAL, AND THE DIRECT
BEARING OF THE ACTIVITIES OF THE WPPA ON STATEWIDE
ISSUES OF COMMERCE AND INDUSTRY ALL WEIGH
HEAVILLY IN FAVOR OF STANDING
As a landowner (20 Enchantment Lane, Mason County) in a Port

District whose tax dollars are spent to support the operations of the WPPA,

who has requested action from the State, it is undisputable that appellant

has standing to maintain this action.

In Washington, it is black letter law that a taxpayer has standing to

challenge the legality of the acts of public officers if he first requests or

demands that a proper public official bring suit on behalf of all taxpayers.

Tacoma v. O’Brien, 85 Wn.2d 266, 269, 534 P.2d 114 (1975);Reiter v.

Wallgren, 28 Wn.2d 872, 876-77, 184 P.2d 571 (1947). Farris v. Munro,

99 Wn.2d 326, 662 P.2d 821 (1983) "

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 In addition, as the Farris Court determined, when the issues are of

serious public importance such as those presented in this case, questions of

standing must be given a less draconian interpretation…

Where a controversy is of serious public importance and immediately

affects substantial segments of the population and its outcome will have a

direct bearing on the commerce, finance, labor, industry or agriculture

generally, questions of standing to maintain an action should be given less

rigid and more liberal answer. Washington Natural Gas C. v. PUD No. 1,

77 Wn.2d 94, 96, 459 P.2d 633 (1969); Accord, Vovos v Grant, 87 Wn.2d

697, 701, 555 P.2d 1343 (1976). In another context, we recently decided to

not dismiss a case for failure to join an indispensable party and instead

reached the substantive issue presented where that "issue is a matter of

continuing and substantial interest, it presents a question of a public nature

which is likely to recur, and it is desirable to provide an authoritative

determination for the future guidance of public officials.” Cathcart-

Maltby. v. Snohomish County., 96 Wn.2d 201, 208, 634 P.2d 853 (1981).

That rationale is derived from some of our decisions involving moot

questions, E.G., In Re Patterson, 90 Wn.2d 144, 149, 579 P.2d 1335

(1978), and similar considerations lead us to address the substantive issues

presented here. Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) "

While the underlying basis for this rule has not been fully

articulated, appellant believes that it is necessary for the Washington State

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standing doctrine to be a constitutionally viable and reasonably engrafted

development of the law, in accord with centuries of established practice.

THE RIGHT TO PETITION IS A RECOGNIZED AND

FUNDAMENTAL RIGHT IN THE STATE OF WASHINGTON

The Court in Richmond v. Thompson, 130 Wn. 2d 368, at 383, 922

P.2d 1343,(1996) has applied the Gunwall analysis to interpret Article 1,

section 4 of the State Constitution in a manner consistent with the First

Amendment, yet it has also recognized, more recently, in Fire Protection

District v. City of Moses Lake, 145 Wn. 2d 702, 42 P.3d 394 (2002) that

the right to petition is a fundamental right under the Washington

Constitution. As has long been recognized in this State…

The people have a right to adopt any system of government

they see fit to adopt. In its workings, it may not meet their
expectations; it may be unwieldy and cumbersome; it may
tend to inconvenience and prodigality; it may be the
expression of a passion or sentiment rather than of sound
reason; but it is the people's government and, until changed
by them, must be observed by the legislature and protected
by the courts. State ex rel. Brislawn v. Meath, 84 Wash.
302, 320, 147 P. 11 (1915).

The right of a taxpayer to petition to ensure his taxes are lawfully

spent is just as fundamental-or perhaps more so as the rights to recognized

in Brislawn, or Save Our Park v. Hordyk, 71 Wn. App. 84, 856 P.2d 734,

(1993). When any doctrine or public official acts, even with the best of

intentions, to thwart a a taxpayer’s effort to petition for redress in relation

to issues of statewide significance involving tax derived revenue, and

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commerce and industry generally, such a decision must be carefully

scrutinized, a liberal standing rule applied, and any laws or doctrines

justifying denial must pass constitutional muster.

WASHINGTON STATE STANDING DOCTRINE MUST BE

INTERPRETED IN CONSONANCE WITH CLEARLY
ESTABLISHED FIRST AMENDMENT PROTECTIONS

Any doctrine, including that of standing must be weighed

according to the Supreme Law of the land, the Constitution of the United

States, as well as the provisions of Article 1 of the Washington State

Constitution. As the Supreme Court of the United States has stated,

"The right of petition is one of the freedoms protected by the

Bill of Rights, and we cannot, of course, lightly impute to
Congress an intent to invade these freedoms." We followed
that view in United Mine Workers v. Pennington, 381 U.S.
657, 669 -671.
The same philosophy governs the approach of citizens
or groups of them to administrative agencies (which are both
creatures of the legislature, and arms of the executive) and to
courts, the third branch of Government. Certainly the right to
petition extends to all departments of the Government. The
right of access to the courts is indeed but one aspect of the
right of petition. See Johnson v. Avery, 393 U.S. 483, 485 ; Ex
parte Hull, 312 U.S. 546, 549 .

It is difficult to determine how all political power may be said to

reside in the people according to Article I, section 1 of the State

Constitution if a landowner is unable, due to a restrictive standing

doctrine, to even seek a determination as to how his taxes are spent by a

private organization.

THE RIGHT OF A LANDOWNER TO PETITION FOR REDRESS

IS AS OLD AS THE LAW ITSELF AND A NATURAL OR
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RESERVED RIGHT PROTECTED UNDER THE DUE PROCESS
CLAUSE AS WELL AS THE GREAT RESIDIUM OF
AMENDMENTS IX AND X

The right of petition for redress is as old as Norse and Anglo Saxon

law itself, and may be seen as a natural right contained in the Great

Residium of USCA IX and X. Even the half civilized personages of the

Icelandic sagas such as Njal or Fiddler Mord, to whom trial by combat

was a normal occurrence, recognized the natural fundamental right of a

landowner to seek redress at the Allthing. See, generally, Brennu-Njáls

saga, 13th Century A.D. (Author unknown)

In its more modern English form, it took its rise from the modest

provision made for it in chapter 61 of Magna Carta (1215). Chapter 61 of

Magna Carta makes it clear that if a citizen is wronged by the Crown

and no remedy is forthcoming after all steps have been exhausted,

that citizen may take whatever action is necessary to obtain

satisfaction without fear of reprisal. As Sir Winston Churchill wrote

(A History of the English Speaking Peoples (1956))

“The underlying idea of the sovereignty of the law,

long existent in feudal custom, was raised by it into a
doctrine for the national state. And when in subsequent
ages the State, swollen with its own authority, has
attempted to ride roughshod over the rights and liberties of
the subject, it is to this doctrine (Magna Carta) that appeal
has again and again been made, and never as yet, without
success.”
This is the historic essence of the statement of the Supreme Court

quoted in the footnote to appellant’s motion to reconsider.

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 Chapter 61 of the original (translated) 1512 Magna Carta provides

a forerunner to both the right of petition and the modern claim-right

described by Hofeld as follows…

61. Since moreover for God, for the improvement of

our kingdom, and for the better allayment of the conflict
that has arisen between us and our barons, we have granted
all these [liberties] aforesaid, wishing them to enjoy those
[liberties] by full and firm establishment forever, we have
made and granted them the following security: namely, that
the barons shall elect twenty-five barons of the kingdom,
whomsoever they please, who to the best of their ability
should observe, hold, and cause to be observed the peace
and liberties that we have granted to them and have
confirmed by this our present charter; so that, specifically,
if we or our justiciar or our bailiffs or any of our ministers
are in any respect delinquent toward any one or transgress
any article of the peace or the security, and if the
delinquency is shown to four barons of the aforesaid
twenty-five barons, those four barons shall come to us, or
to our justiciar if we are out of the kingdom, to explain
to us the wrong, asking that without delay we cause this
wrong to be redressed. And if within a period of forty
days, counted from the time that notification is made to us,
or to our justiciar if we are out of the kingdom, we do not
redress the wrong, or, if we are out of the kingdom, our
justiciar does not redress it, the four barons aforesaid shall
refer that case to the rest of the twenty-five barons, and
those twenty-five barons, together with the community
of the entire country, shall distrain and distress us in
every way they can, namely, by seizing castles, lands,
possessions, and in such other ways as they can, saving
our person and the persons of our queen and our
children, until, in their opinion, amends have been
made; and when amends have been made, they shall
obey us as they did before.

To this meagre beginning are traceable, in some measure,

Parliament itself and its procedures in the enactment of legislation, the

equity jurisdiction of the Lord Chancellor, and proceedings against the

Crown by ''petition of right.'' (not to mention the Washington State

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Taxpayer standing doctrine) Thus, while the King summoned Parliament

for the purpose of supply, the latter--but especially the House of

Commons--petitioned the King for a redress of grievances as its price for

meeting the financial needs of the Monarch, and as it increased in

importance it came to claim the right to dictate the form of the King's

reply, until, in 1414, Commons declared itself to be ''as well assenters as

petitioners.''

Two hundred and fifty years later, in 1669, Commons further

resolved that every commoner in England possessed ''the inherent right to

prepare and present petitions'' to it ''in case of grievance,'' and of

Commons ''to receive the same'' and to judge whether they were ''fit'' to be

received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right

of the subjects to petition the King and ''all commitments and prosecutions

for such petitioning to be illegal.'' 12 Encyclopedia of the Social Sciences

98 (1934).

Historically, therefore, the right of petition is the primary right, the right

peaceably to assemble a subordinate and instrumental right, as if the First

Amendment read: ''the right of the people peaceably to assemble'' in order to

''petition the government.'' United States v. Cruikshank, 92 U.S. 542, 552

(1876), Today, however, the right of peaceable assembly is, in the language of

the Court, ''cognate to those of free speech and free press and is equally

fundamental. . . . [It] is one that cannot be denied without violating those

fundamental principles of liberty and justice which lie at the base of all civil and

political institutions--principles which the Fourteenth Amendment embodies in

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the general terms of its due process clause. . . . Furthermore, the right of petition

has expanded. It is no longer confined to demands for ''a redress of grievances,''

in any accurate meaning of these words, but comprehends demands for an

exercise by the Government of its powers in furtherance of the interest and

prosperity of the petitioners and of their views on politically contentious matters.

See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127

(1961).

The right extends to the ''approach of citizens or groups of them to

administrative agencies (which are both creatures of the legislature, and

arms of the executive) and to courts, the third branch of Government.

Certainly the right to petition extends to all departments of the

Government. The right of access to the courts is indeed but one aspect

of the right of petition.'' California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 913 -15 (1982); Missouri v. NOW, 620 F.2d

1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980)

RESTRICTIVE STANDING DOCTRINE FOR INDIVIDUALS

VIOLATES THE PRIVILEGES AND IMUNITIES CLAUSE OF
ARTICLE 4, SECTION 12 OF THE STATE CONSTITUTION
WHERE THE WPPA ENJOYS SPECIAL PRIVILEGES AND
IMMUNITIES
In this particular case, where the WPPA has been repeatedly

recognized to have standing to seek declaratory relief in the courts and

administrative agencies of this State, Wash. Pub. Ports Ass'n v. Dep't of

Revenue, 148 Wn.2d 637, (2003), Futurewise v. W. Wash. Growth Mgmt.

Hearings Bd. (WPPA as Intervener) Docket Number: 80396-0 File Date:

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07/31/2008, the application of a restrictive standing doctrine to this

appellant also runs afoul of the privileges and immunities clause of the

State Constitution, which was adopted primarily to deter such favoritism.

Whereas the equal protection clause of the Fourteenth Amendment

(U.S. Const. amend. XIV, § 1) is concerned with majoritarian threats of

invidious discrimination, the privileges and immunities clause of Const.

art. I, § 12 (No law shall be passed granting to any citizen, class of

citizens, or corporation other than municipal, privileges or immunities

which upon the same terms shall not equally belong to all citizens, or

corporations) protects against laws serving private interests to the

detriment of the majority. The concern of the state provision is the

prevention of favoritism or special treatment for a few, rather than

prevention of discrimination against disfavored individuals or groups. See

Fire Prot. Dist. V. City of Moses Lake, 145 Wn.2d 702, 2002

For this court to allow the WPPA to occupy a specially favored

position under the laws as a State sponsored and publicly funded private

entity, immune from public disclosure and citizen taxpayer suit is a clear

and undeniable violation of the privileges and immunities clause of the

State Constitution, as well as the other clear and established precedents

dating back to before the dawn of our democratic system of government.

Democracy, in its most basic tenets, to this day follows the outline

laid out by Heroditus and Otanes over 2,500 years ago.

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 (The rule of the people has the fairest name of all, equality, and

does none of the things that a monarch does… power is held

accountable, and deliberation is conducted in public)

This Court should reverse the ruling of the Trial Court and remand

for further proceedings and discovery if it seeks to preserve these most

ancient and venerable democratic traditions of the rule of the people,

equality, that power be held accountable, and the deliberation of

government funded organizations setting statewide policy be conducted in

public. No citizen of a democratic state for over two millennia has

expected anything less.

Done September 15, 2008.

_______________
Arthur West

I certify under penalty of law that this document was served on

counsel for respondent, Carolyn Lake, by E-mail and placing it in the U.S.

Mail, this day of September 15, 2008.

Done September 15, 2008.

_______________
Arthur West

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