Court Funding - State's Motion to Dismiss

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THE HONORABLE KRISTIN RICHARDSON ORAL ARGUMENT NOTED FOR Hearing Date: Sept. 10, 2021 Hearing Time: 11:00 a.m.

SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY JENNIFER RALSTON, CALEB MCNAMARA, THE ESTATE OF MCNAMARA, BRAEDEN SIMON, ABIE EKENEZER, JESSE HUGHEY, TIM KAUCHUK, JORDAN PICKETT, DANIEL PIERCE, SEAN SWANSON, JOEY WIESER, QUINN ZOSCHKE, AND JEFF CUSHMAN,

No. 21-2-06462-7 SEA MOTION TO DISMISS AMENDED COMPLAINT

Plaintiffs, v.

STATE OF WASHINGTON, Defendant.

153411396

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INTRODUCTION AND RELIEF REQUESTED .................................................. 1 BACKGROUND AND PLAINTIFFS’ ALLEGATIONS ........................................ 2 I.

Washington’s Judicial System and Superior Courts ....................... 2 A.

Washington’s counties have always funded the superior courts’ operating costs ............................................. 2

B.

Washington superior courts’ case resolution rates ............... 4

C.

The unprecedented impact of COVID-19 .............................. 5

II.

Plaintiffs’ Underlying Tort Lawsuits ............................................... 6

III.

Plaintiffs’ Complaint ......................................................................... 9

STATEMENT OF ISSUES .................................................................................. 10 EVIDENCE RELIED UPON ............................................................................... 10 AUTHORITY AND ARGUMENT ........................................................................ 10 I.

II.

Plaintiffs Lack Standing to Seek Statewide Funding for the Judiciary ............................................. 11 A.

The judiciary alone has the inherent (though limited) power to compel funding necessary to its fundamental functions ............................................................................... 12

B.

Private parties cannot invoke the judiciary’s inherent power..................................................................................... 14

C.

Plaintiffs fail to allege a constitutional injury, causation, or redressability sufficient for standing ............ 18

Plaintiffs’ Available Legal Remedies Preclude Their Request for Collateral Equitable Relief ............................... 20 A.

The availability of adequate remedies in Plaintiffs’ pending tort suits precludes equitable relief here .............. 21

B.

This Court should reject this collateral attack on pending proceedings in coordinate courts ........................... 21

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III.

IV.

Plaintiffs Fail to State Legally Actionable Claims ........................ 22 A.

The First Cause of Action fails because article I, section 29 contains no substantive requirement ................ 23

B.

The Second Cause of Action fails because the “open courts clause” creates no State funding duty ...................... 23

C.

The Third Cause of Action fails because the right to a jury trial creates no State funding duty .............................. 26

D.

Plaintiffs’ other claims depend upon, and fail with, their underlying claims ........................................................ 29

Dismissal with Prejudice Is Warranted ......................................... 31

CONCLUSION ..................................................................................................... 31

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Page CASES Alim v. City of Seattle, 14 Wn. App. 2d 838, 474 P.3d 589 (2020) ....................................................... 11 Am. Mobile Homes of Wash. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 796 P.2d 1276 (1990) ............................................................. 22 Atl. Cas. Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 153 P.3d 211 (2007) .......................................................... 22 Bennion, Van Camp, Hagen & Ruhl v. Kassler Escrow, 96 Wn.2d 443, 635 P.2d 730 (1981) ................................................................. 17 Carrick v. Locke, 125 Wn.2d 129, 882 P.2d 173 (1994) ............................................................... 12 City of Bothell v. Barnhart, 172 Wn.2d 223, 257 P.3d 648 (2011) ......................................................... 25, 27 City of Ellensburg v. State, 118 Wn.2d 709, 826 P.2d 1081 (1992) ............................................................. 12 Davis v. Cox, 183 Wn.2d 269, 351 P.3d 862 (2015) ............................................................... 28 Davison v. State, 196 Wn.2d 285, 466 P.3d 231 (2020) ................................................................. 3 Doe v. Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 780 P.2d 853 (1989) ............................................................ 20 Endicott v. Icicle Seafoods, 167 Wn.2d 873, 224 P.3d 761 (2010) ............................................................... 22 Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) ................................................................. 27 Flushing Nat’l Bank v. Mun. Assistance Corp. for City of New York, 390 N.Y.S.2d 22, 358 N.E.2d 848 (1976) ......................................................... 23

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Frank Coluccio Constr. Co. v. King County, 3 Wn. App. 2d 504, 416 P.3d 756 (2018) ......................................................... 22 Furnstahl v. Barr, 197 Wn. App. 168, 389 P.3d 635 (2016) .......................................................... 28 Hoppe v. State, 78 Wn.2d 164, 469 P.2d 909 (1970) ................................................................... 4 In re Det. of Reyes, 176 Wn. App. 821, 315 P.3d 532 (2013) .......................................................... 24 In re Mowery, 141 Wn. App. 263, 169 P.3d 835 (2007) .......................................................... 14 In re Salary of Superior Court Judges, 82 Wn. 623, 144 P. 929 (1914) ........................................................................... 3 Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 347 P.3d 487 (2015) ............................................................ 6 King v. King, 162 Wn.2d 378, 174 P.3d 659 (2007) ............................................................... 24 King v. Olympic Pipeline Co., 104 Wn. App. 338, 16 P.3d 45 (2000) .............................................................. 28 Kucera v. State, 140 Wn.2d 200, 995 P.2d 63 (2000) ................................................................. 21 Ladenburg v. Henke, 197 Wn.2d 645, 486 P.3d 866 (2021) ................................................................. 3 Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d 742, 466 P.3d 213 (2020) ............................................................... 14 LaMon v. Butler, 112 Wn.2d 193, 770 P.2d 1027 (1989) ............................................................. 28 Markoff v. Puget Sound Energy, 9 Wn. App. 2d 833, 447 P.3d 577 (2019) ......................................................... 30

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Matter of Salary of Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976) ..........................................................passim McCleary v. State, 173 Wn.2d 477, 269 P.3d 227 (2012) ............................................................... 25 McNamara v. Koehler, 4 Wn. App. 2d 1071 (2018) ................................................................................. 7 Mills v. W. Wash. Univ., 170 Wn.2d 903, 246 P.3d 1254 (2011) ............................................................. 24 Nielson v. Spanaway Gen. Med. Clinic, 85 Wn. App. 249, 931 P.2d 931 (1997) ............................................................ 28 Pimentel v. Judges of King County Superior Court, 197 Wn.2d 365, 482 P.3d 906 (2021) ......................................................... 21, 30 Port of Tacoma v. Parosa, 52 Wn.2d 181, 324 P.2d 438 (1958) ................................................................. 15 Robinson v. Safeway Stores, 113 Wn.2d 154, 776 P.2d 676 (1989) ............................................................... 29 Rocha v. King County, 195 Wn.2d 412, 460 P.3d 624 (2020) ......................................................... 14, 17 Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 189 P.3d 168 (2008) .................................................... 11, 31 Seattle Sch. Dist. No. 1 of King County v. State, 90 Wn.2d 476, 585 P.2d 71 (1978) ............................................................. 17, 25 SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 229 P.3d 774 (2010) ............................................................... 13 Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711 (1989) ............................................................... 29 Stafne v. Snohomish County, 174 Wn.2d 24, 271 P.3d 868 (2012) ................................................................. 21

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State v. Harp, 13 Wn. App. 273, 534 P.2d 846 (1975) ............................................................ 22 State v. Johnson, 179 Wn.2d 534, 315 P.3d 1090 (2014) ....................................................... 11, 19 State v. Leyerle, 158 Wn. App. 474, 242 P.3d 921 (2010) .......................................................... 24 State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008) ............................................................... 29 State v. Ollivier, 178 Wn.2d 813, 312 P.3d 1 (2013) ................................................................... 28 State v. Perala, 132 Wn. App. 98, 130 P.3d 852 (2006) ............................................................ 17 State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012) ............................................................... 15 State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003) ................................................................. 29 State v. Vukich, 158 Wn. 362, 290 P. 992 (1930) ....................................................................... 24 State v. Williams, 97 Wn. App. 257, 983 P.2d 687 (1999) ............................................................ 15 Thomas v. Lehman, 138 Wn. App. 618, 158 P.3d 86 (2007) ............................................................ 30 Trinity Universal Ins. v. Ohio Cas. Ins., 176 Wn. App. 185, 312 P.3d 976 (2013) .......................................................... 11 Trujillo v. Nw. Tr. Servs., 183 Wn.2d 820, 355 P.3d 1110 (2015) ................................................... 4, 10, 11 Watson v. City of Seattle, 189 Wn.2d 149, 401 P.3d 1 (2017) ..................................................................... 3

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Willapa Trading Co. v. Muscanto, 45 Wn. App. 779, 727 P.2d 687 (1986) ............................................................ 22 Woolery v. State, 171 Wn. App. 1016, 2012 WL 5347825 (Oct. 24, 2012) .................................. 17 WSBA v. State, 125 Wn.2d 901, 890 P.2d 1047 (1995) ............................................................. 15 Zylstra v. Piva, 85 Wn.2d 743, 539 P.2d 823 (1975) ................................................................. 15 STATUTES RCW 4.44.025 ........................................................................................................ 21 RCW 43.88.090(1) .................................................................................................. 19 RULES Wash. Crim. R. 3.3 ................................................................................................ 26 Wash. Gen. R. 14.1 ................................................................................................ 17 Wash. R. App. P. 2.3 .............................................................................................. 21 Wash. Sup. Ct. Civ. R. 12(b)(6) ................................................................... 2, 10, 11 Wash. Sup. Ct. Civ. R. 27 ...................................................................................... 21 Wash. Sup. Ct. Civ. R. 38(a)(b) ............................................................................. 26 Wash. Sup. Ct. Civ. R. 40(c) .................................................................................. 26 Wash. Sup. Ct. Civ. R. 59(a) ................................................................................. 21 OTHER AUTHORITIES Const. art. I, § 10 ............................................................................................passim Const. art. I, § 21 ............................................................................................passim

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Const. art. I, § 22 ................................................................................................... 27 Const. art. I, § 29 ............................................................................................... 9, 23 Const. art. II, § 42 ................................................................................................. 23 Const. art. IV, § 1 ............................................................................................ 12, 15 Const. art. IV, § 13 .................................................................................................. 3 Const. art. VIII, § 4 ......................................................................................... 12, 13 Const. art. IX, § 1 .................................................................................................. 25 Utter & Spitzer, The Washington State Constitution 43 (2002) .......................... 23

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INTRODUCTION AND RELIEF REQUESTED Based on modest delays in their pending civil cases amid a global pandemic, Plaintiffs ask this Court to commandeer funding decisions from the branch constitutionally entitled to make them—the Legislature. Neither Plaintiffs’ novel interpretation of the Washington Constitution nor their unprecedented requests for relief can withstand scrutiny. The courts’ prerogative is to resolve legal disputes and “say what the law is,” not to compel the Legislature to create and fund a host of judicial programs or to supervise the Legislature’s budgeting for the entire Washington judiciary, as Plaintiffs would have it. No court, in Washington or otherwise, has ever countenanced such an inversion of foundational separation-of-powers principles. This Court should not be the first.

Plaintiffs each have civil cases pending in other courts—one in Grant County, one in Pierce County, and two in King County. Their respective trial dates were continued because of COVID-19 and other scheduling issues and complexities. Plaintiffs have not challenged those continuances in their pending cases. Instead, they filed this collateral challenge, asserting purported violations of the right to have justice administered “without unnecessary delay,” Const. art.

I, § 10, as well as the “[t]he right of trial by jury,” id., § 21. On behalf of a putative class of civil litigants, Plaintiffs seek “reasonable and adequate funding to the courts” in eighteen categories, ranging from “[c]ivil legal aid in urban and rural locations,” to “[a]dequate information technology and security,” to “additional judges and court staff.” First Am. Compl. (“FAC”) ¶¶ 10.3, 10.4.

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This Court should dismiss the complaint under CR 12(b)(6) for failure to state a claim. First, Plaintiffs lack standing to force the Legislature to provide court funding. The Washington Supreme Court has held that only “[t]he inherent power of the judiciary to compel funding of its own functions” can check the Legislature in the rare and extraordinary cases when truly inadequate funding leaves courts unable to function. Matter of Salary of Juvenile Director, 87 Wn.2d 232, 245, 552 P.2d 163 (1976) (emphases added). Private plaintiffs lack standing to invoke that power. Second, Plaintiffs ask this Court to exercise a kind of collateral review over their pending proceedings. This is inappropriate because Plaintiffs have not exhausted available legal remedies in those proceedings, such as moving to expedite their trials. Third, Plaintiffs’ causes of action all fail as a matter of law. There is no civil speedy trial right in Washington, and the Washington Constitution—based on its text, history, and construction by controlling precedent—plainly does not require the expansive State funding that Plaintiffs seek. Their claims fail at the threshold and must be dismissed.

BACKGROUND AND PLAINTIFFS’ ALLEGATIONS The judicially noticeable facts in this section are provided for context, but the Court need not consider or resolve any factual issues to determine whether Plaintiffs have failed to state claims for relief as a matter of law.

I.

Washington’s Judicial System and Superior Courts A.

Washington’s counties have always funded the superior courts’ operating costs

The State Legislature has never been held constitutionally responsible for funding superior courts on its own. Since Washington’s founding, “the superior

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courts” have been understood to “occupy a somewhat dual position” because “they perform both state and county functions.” In re Salary of Superior Court Judges, 82 Wn. 623, 628, 144 P. 929 (1914); accord Ladenburg v. Henke, 197 Wn.2d 645, 486 P.3d 866, 870 (2021). That understanding is enshrined in the sole constitutional provision concerning responsibility for judicial funding (a provision Plaintiffs’ complaint fails to acknowledge): article IV, section 13 provides that the State must pay the full salary of supreme court justices, but only “[o]ne-half of the salary of each of the superior court judges,” with the counties being responsible for the other half.1 Consistent with this provision, the State has never been obligated to solely fund the Washington superior courts. In Washington’s earliest days as a state, the “equipment” for the superior courts—“such as the places of holding courts, the clerks, bailiffs, and other assistants”—was “furnished wholly by the counties.”

Superior Court Judges, 82 Wn. at 628. The supreme court justices, in contrast, had “their equipment necessary to the exercise of the functions furnished wholly by” the State. Id. The same division of funding responsibility remains in place today: counties are responsible for the “costs of operating superior and district courts,” while the State funds “the Supreme Court, its administrative

Plaintiffs allege that the “counties” are mere “agents” of the State acting on its “behalf.” FAC ¶ 2.31. The reality is not so simplistic. The Washington Constitution establishes a “presumption of autonomy in local governance.”

Watson v. City of Seattle, 189 Wn.2d 149, 166, 401 P.3d 1 (2017)); see also, e.g., Davison v. State, 196 Wn.2d 285, 298, 466 P.3d 231 (2020) (State cannot be held liable for county’s alleged failure to fulfill its duties).

1

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departments, and the Court of Appeals.”2 In fact, after Plaintiffs filed their original complaint, King County passed a supplemental budget allocating an additional $42.5 million to help alleviate “legal system backlogs.”3 Plaintiffs allege that, when state-level funding is considered in isolation, Washington ranks relatively low among the fifty states. FAC ¶ 5.12 & n.13.4 But using the most recent data available, when state and local funding are considered in the aggregate (consistent with the historically established division of funding responsibilities), Washington ranks eleventh nationwide in court-system spending.5 B.

Washington superior courts’ case resolution rates

Washington resolves civil cases on timelines comparable to or better than its sister states. In 2018, the most recent year of statewide data available, superior courts in Washington resolved 92.5% of civil cases in 12 months and

https://www.courts.wa.gov/programs_orgs/pos_jea/?fa=pos_jea.article1 (accessed Aug. 9, 2021).

2

https://kingcounty.gov/council/mainnews/2021/July/7-27-covid-8-budgetpassage.aspx (accessed Aug. 9, 2021).

3

The Bureau of Justice Statistics report cited in footnote 13 of the amended complaint, a set of “preliminary” data from 2012, is attached as Exhibit A to the Declaration of David T. Martin (“Martin”). This Court may consider the report and the other documents “whose contents are alleged in a complaint.” Trujillo v.

Nw. Tr. Servs., 183 Wn.2d 820, 827 n.2, 355 P.3d 1110 (2015). Additionally, the report and other government statistical data cited below are judicially noticeable.

See Hoppe v. State, 78 Wn.2d 164, 172, 469 P.2d 909 (1970).

4

See Martin Ex. B. If the states are ranked based on the “Local, total” figures in the Bureau of Justice Statistics’ most recent (2016) data, Washington ranks eleventh in judicial and legal expenditures (column I), ahead of the more populous states of Virginia, New Jersey, and North Carolina (column C).

5

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nearly 98% of civil cases within 24 months.6 That rate is comparable to neighboring Oregon, which resolved 93% of civil cases within 12 months.7 By comparison, California resolved only 75% of civil cases within 12 months,8 and Texas resolved only 66% (district court) and 75% (statutory county courts) of civil cases within 12 months.9 Washington’s civil case resolution even outpaces the farbetter-resourced federal system, where more than 10% of civil cases remain pending after three years.10 C.

The unprecedented impact of COVID-19

Like courts everywhere, Washington’s courts have been dramatically impacted by COVID-19. Consistent with Governor Inslee’s “Stay Home, Stay Healthy” orders, the Washington Supreme Court suspended all civil and criminal jury trials in April 2020 and until at least July 6, 2020. See Second Revised and Extended Order Regarding Court Operations, No. 25700-B-618 (Apr. 28, 2020); FAC ¶ 5.70. When emergency federal funds arrived, the State engaged in “a tremendous expansion in technology use” to facilitate virtual court proceedings, “with about 75 percent of $13.3 million in federal CARES Act funding for https://www.courts.wa.gov/caseload/content/archive/superior/Annual/2018.p df, at 317 (accessed Aug. 9, 2021).

6

https://www.courts.oregon.gov/about/Documents/2018Goals forTimelyDisposition-AgeofTerminatedCases.pdf, at 2 (accessed Aug. 9, 2021).

7

https://www.courts.ca.gov/documents/2019-Court-Statistics-Report.pdf, at 64 (accessed Aug. 9, 2021).

8

https://www.txcourts.gov/media/1443455/2018-ar-statistical-final.pdf, at 82 (accessed Aug. 9, 2021).

9

https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofil e0331.2021.pdf, at 1 (accessed Aug. 9, 2021).

10

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Washington courts going for new technology expenses.” See State of the Judiciary, Washington

State

Supreme

Court,

at

16

(2021),

available

at

https://www.courts.wa.gov/newsinfo/content/StateoftheJudiciary2021.cfm (accessed Aug. 9, 2021) (cited in FAC ¶ 5.39, n.39).

The Washington Supreme Court authorized resumption of civil jury trials in June 2020, insofar as courts could “observ[e] social distancing and follow[] the most protective applicable public health guidance in their jurisdiction.” See Order Re: Modification of Jury Trial Proceedings, No. 25700-B-631, at 2 (June 18, 2020) (lifting previous suspension of jury trials); FAC ¶ 5.75. Nothing in the Supreme Court’s order, however, “limit[ed] the authority of courts to adopt measures to protect health and safety that are more restrictive than th[e] Order, as circumstances warrant.” Order No. 25700-B-631, at 5.

II.

Plaintiffs’ Underlying Tort Lawsuits Plaintiffs have four tort suits pending in Grant, Pierce, and King Counties.

See FAC ¶¶ 2.5, 2.20, 5.82-5.84. While the instant complaint is premised on their constitutional rights allegedly being violated in those cases, they spend just a few paragraphs describing those proceedings. FAC ¶¶ 2.3, 2.8, 2.18-2.20, 2.22, 5.82-5.84. This Court can and should take judicial notice of the records in those cases, which are “public documents” that are also effectively incorporated into the amended complaint. See Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844, 347 P.3d 487 (2015).

Plaintiffs Jennifer Ralston and Caleb McNamara are pursuing a wrongfuldeath lawsuit in Grant County against the alleged perpetrator of their father’s murder. FAC ¶ 5.82; Martin Ex. C. The lawsuit was filed in 2015 and has been

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bitterly contested between the parties. See, e.g., Martin Ex. G at 29 (defining every word in a prior court order, on the theory it “was not clear enough” for opposing counsel). In fact, the wrongful-death suit spawned a separate defamation suit, in which the wrongful-death defendant sued plaintiffs’ counsel for posting information on her firm’s website. See McNamara v. Koehler, 4 Wn. App. 2d 1071 (2018) (unpublished). In September 2020, the defendant moved for a continuance, citing defense counsel’s need for multiple surgeries and outstanding discovery issues. See Martin Ex. G at 4-5. The court granted the continuance and set a new trial date in March 2022. Martin Ex. H at 2. Its order expressly notes that: “The parties may bring a motion for an expedited trial date.”

Id. The record does not indicate that they have done so. See Martin Ex. C. Plaintiff Braeden Simon is pursuing a negligence lawsuit in Pierce County arising from his motorcycle accident there. FAC ¶ 5.83. The accident occurred in February 2020. See Martin Ex. I at 2. Mr. Simon filed his amended complaint in October 2020. Martin Ex. D at 2. The original case schedule set the trial for September 7, 2021. Id. at 1. The case was reassigned to Judge Kirkendoll in February 2021. Martin Ex. J. Because of a scheduling conflict, Judge Kirkendoll continued the trial date shortly after reassignment. Martin Ex. K. The trial was postponed for only five months, received Judge Kirkendoll’s next available trial date, and is now set to occur just seventeen months after Mr. Simon filed his complaint. Id.; FAC ¶ 5.83.

Plaintiffs Abie Ekenezer, Jesse Hughey, Tim Kauchak (or Kauchuk, see FAC p. 1), Jordan Pickett, Daniel Pierce, Sean Swanson, Joey Wieser, and Quinn Zoschke are among “approximately 55” plaintiffs who sued the City of Seattle,

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King County, and the State in September 2020 for injuries allegedly incurred during last year’s protests advocating racial justice. FAC ¶¶ 2.18, 5.84; Martin Ex. E at 5. Their 248-page third amended complaint was filed in April 2021, dismissed in part on June 25, and answered on July 30. Id. at 7-9; Martin Ex. L. In light of the case’s complexity (plaintiffs disclosed more than 550 witnesses) and the extent of plaintiffs’ discovery requests (55 written discovery requests containing nearly 1,000 subparts), the defendants requested a two-year trial continuance and appointment of a special master. Martin Ex. M. The court denied the request for a special master and continued the initial trial date by approximately seventeen months, from September 2021 to February 2023. FAC ¶ 2.19.

Plaintiff Jeff Cushman is one of several plaintiffs in consolidated tort suits stemming from an automobile accident allegedly caused by a Lyft driver. FAC ¶ 2.20; Martin Ex. N. The accident occurred in July 2019; the lawsuit was filed in King County in October 2020; and trial was initially set for October 2021. FAC ¶ 2.20; Martin Ex. F. After the court consolidated Cushman’s case with later-filed cases, the parties agreed that a modest trial continuance was warranted, but— unlike the defendants and some of his co-plaintiffs—Cushman believed a two-month continuance sufficed. Martin Ex. O at 7. The court continued the trial by five months, to March 2022. FAC ¶ 2.20. On August 12, 2021, Cushman and his co-plaintiffs filed an amended complaint to add plaintiffs and claims against a third-party defendant. Martin Ex. P at 5; Martin Ex. N. Plaintiffs do not allege that they have raised any constitutional concerns in their tort cases. See generally FAC. Nor do they allege taking any steps to

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expedite their trials, to seek reconsideration of the continuances, or to seek appellate review. Id. Their case dockets include no filings seeking such relief. See Martin Exs. C-F. III.

Plaintiffs’ Complaint Instead of raising their constitutional concerns in the courts where their

cases are pending, Plaintiffs filed this separate lawsuit. They contend that the State’s “unconstitutionally inadequate funding” of the judiciary has violated their constitutional rights and those of “thousands” of other civil litigants across Washington. FAC ¶ 5.85. Specifically, they allege that the State’s budget violates the separation-of-powers doctrine and three provisions of article I of the Washington Constitution: section 29, which confirms that constitutional provisions are “mandatory”; section 10, which guarantees open courts and “[j]ustice . . . without unnecessary delay”; and section 21, which enshrines the right to a jury trial. FAC ¶¶ 6.1-8.3. Plaintiffs request a declaration that their rights under these provisions were violated, along with breathtakingly expansive injunctive (or mandamus) relief. FAC ¶¶ 9.1-9.2. Plaintiffs ask the Court to order the State to provide eighteen categories of funding, including interpreters, civil legal aid, law libraries, “[h]elp for self-represented persons,” “[e]ducation for judicial officers and staff,” additional judges and staff, enhanced courthouse security, technology, and infrastructure. FAC ¶¶ 10.4, 11.1. In sum, Plaintiffs seek wholesale judicial oversight of judicial funding by the State based on their civil trial continuances.

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STATEMENT OF ISSUES 1.

Do Plaintiffs, as private litigants pursuing civil lawsuits, lack standing to seek statewide funding on behalf of the judicial branch?

2.

Should Plaintiffs be precluded from seeking declaratory and injunctive relief in this collateral challenge, where they have adequate legal remedies available to address allegedly improper delays in their separate cases?

3.

Have Plaintiffs failed to state claims on which relief can be granted, where the constitutional provisions on which they rely do not establish a right to a speedy civil jury trial and do not require court funding by the State?

4.

Should this Court dismiss Plaintiffs’ claims with prejudice pursuant to CR 12(b)(6)?

EVIDENCE RELIED UPON This motion presumes that the complaint’s factual allegations are true. See

Trujillo, 183 Wn.2d at 830. It also relies on documents “the complaint references,” id. at 827 n.2, which are attached as exhibits to the Martin Declaration. The Martin Declaration also provides judicially noticeable information in the public record for background purposes. This Court can consider this information, but it need not do so—or make any factual findings—to determine that Plaintiffs have failed to state any claim on which relief can be granted.

AUTHORITY AND ARGUMENT This Court should dismiss the complaint for three reasons. First, Plaintiffs lack standing to seek funding on behalf of the judiciary. Second, Plaintiffs are not entitled to the equitable relief they seek from this Court because they have adequate legal remedies available in their underlying lawsuits. Third, Plaintiffs’

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claims are not legally viable: the constitutional provisions on which they rely simply do not guarantee the statewide court funding that Plaintiffs seek.

Because Plaintiffs’ claims are not cognizable under any set of facts consistent with their complaint, the lawsuit should be dismissed pursuant to CR 12(b)(6). See Trujillo, 183 Wn.2d at 830; Alim v. City of Seattle, 14 Wn. App. 2d 838, 849-50, 474 P.3d 589 (2020) (addressing lack of standing under CR 12(b)(6)). And because further amendment could not cure those legal defects, dismissal should be with prejudice. Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 730, 189 P.3d 168 (2008).

I.

Plaintiffs Lack Standing to Seek Statewide Funding for the Judiciary “The claims of a plaintiff who lacks standing cannot be resolved on the

merits and must fail.” Trinity Universal Ins. v. Ohio Cas. Ins., 176 Wn. App. 185, 199, 312 P.3d 976 (2013). Plaintiffs lack standing absent (1) “a personal injury fairly traceable to the challenged conduct and likely to be redressed by the requested relief” or (2) an interest within the “zone of interests protected by the . . . constitutional provision at issue.” State v. Johnson, 179 Wn.2d 534, 552, 315 P.3d 1090 (2014). Fundamentally, the doctrine of standing “prohibit[s] a plaintiff from asserting another’s legal rights.” Trinity Universal Ins., 176 Wn. App. at 199.

Here, Plaintiffs lack standing to remedy allegedly “inadequate court funding by the Legislature.” FAC ¶¶ 7.3, 8.3; see also, e.g., id. ¶¶ 6.3, 9.1-9.2, 10.1-10.4. Under Washington Supreme Court precedent, only the judiciary itself can seek such funding through litigation—and only under extraordinary

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circumstances. For similar reasons, Plaintiffs have failed to allege a constitutional injury sufficient for standing and cannot satisfy the doctrine’s causation and redressability requirements.

A.

The judiciary alone has the inherent (though limited) power to compel funding necessary to its fundamental functions

The separation-of-powers doctrine “serves mainly to ensure that the fundamental functions of each branch remain inviolate.” Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994). Under the Washington Constitution, “[t]he judicial power” is “vested” in the “courts,” Const. art. IV, § 1, while “[t]he power of appropriation is vested in the Legislature.” City of Ellensburg v. State, 118 Wn.2d 709, 718, 826 P.2d 1081 (1992) (citing Const. art. VIII, § 4). “Legislative control over appropriations” and “the judicial authority to declare legislative and executive acts unconstitutional” are “examples of direct control by one branch over another”—part of the “delicate balance” of the constitutional checks-andbalances system. Juvenile Director, 87 Wn.2d 232, 242-43. “It is the rare case” in which one branch “interferes with” the power of another. City of Ellensberg, 118 Wn.2d at 718.

In Matter of Salary of Juvenile Director, the Washington Supreme Court recognized a narrow exception to the general principle of judicial noninterference with legislative appropriations powers: “While courts must limit their incursions into the legislative realm in deference to the separation of powers doctrine,” the judiciary must “be able to ensure its own survival when insufficient funds are provided by the other branches.” 87 Wn.2d at 245. As such, the judiciary has “inherent power . . . to compel funding of its own functions,” i.e., “the basic needs

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of the[] courts as to equipment, facilities and supporting personnel.” Id. Because of the extraordinary nature of this power—which intrudes on the Legislature’s appropriations power and subverts the normal separation of powers—the Washington Supreme Court adopted a “high standard” for the judiciary to invoke its inherent authority: available funding must be “so inadequate that the court [can]not fulfill its duties.” Id. at 250, 252-53. The Court also imposed “the highest burden of proof”—a “clear, cogent, and convincing” showing—on “courts seek[ing] to exercise their inherent power in the context of court finance.” Id. at 251-52.

The Court held in Juvenile Director that this standard was not met.11 Id. There are two basic reasons for these limitations. First, the “inherent power derives from the need to protect the functioning of an independent branch,” and therefore must hew closely to that purpose. Id. at 249. Second, structural separation-of-powers considerations favor restraint. Id. Courts are ill-equipped for the inherently “political” task of “allocat[ing] available monetary resources.”12 Id. at 248. They cannot hold “public hearings,” have no established and “carefully monitored process” for budgeting, and are not “politically sensitive.” Id. at 248-49.

Indeed, the State’s counsel are unaware of any court ever invoking inherent judicial power to compel a statewide funding increase for the court system.

Plaintiffs’ citation of a single judge’s suit against a county for funding to secure one courthouse is the exception that proves the rule. See FAC ¶ 5.44.

11

In this context, “political” means the necessarily “discretionary” nature of balancing the many competing concerns that come with “[d]eciding the allocation of limited state funds.” SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 600, 229 P.3d 774 (2010) (cleaned up). Relatedly, “monetary resources” does not just mean available funds. It refers to tax revenues extracted through tax legislation, which is another power reserved only to the Legislature. See Const. art. VII, § 5; id., art. VIII, § 4.

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Also, if courts frequently ruled in favor of their own funding, they could undermine “the judiciary’s image of impartiality and the concomitant willingness of the public to accept its decisions as those of a fair and disinterested tribunal.”

Id. at 249. As the Washington Supreme Court reiterated just last year, funding “concerns are best resolved in the legislative arena.” Rocha v. King County, 195 Wn.2d 412, 432, 460 P.3d 624 (2020).

In sum, courts must strictly “limit their incursions” into the Legislature’s funding powers to instances where doing so is “actually necessary to the purpose of self-protection.” In re Mowery, 141 Wn. App. 263, 282, 169 P.3d 835 (2007).

B.

Private parties cannot invoke the judiciary’s inherent power

Private plaintiffs lack standing to pursue an alleged constitutional right to statewide court funding because, to the extent that an extraordinary power to compel funding outside the constitutional appropriations process exists, that carefully circumscribed power belongs exclusively to the judicial branch.

First and foremost, Plaintiffs are not within the “zone of interests” protected by the purported constitutional rights to judicial funding that they invoke because—as discussed in Part III below—the constitutional provisions on which they rely establish no such rights. Plaintiffs misread these provisions to establish State funding requirements, when in fact they do no such thing. Infra § III. Even if Plaintiffs had identified a colorable constitutional claim, the judiciary is the only party that could assert a claim of constitutionally inadequate court funding. Cf. Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d

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742, 769, 466 P.3d 213 (2020) (parties lacked standing where constitutional provisions at issue did not apply to them). Article IV is clear that “[t]he judicial power” is “vested” in the “courts,” not private citizens. Const. art. 4, § 1.

Accordingly, the courts have exclusive control over activities that preserve the judicial function. See, e.g., WSBA v. State, 125 Wn.2d 901, 909, 890 P.2d 1047 (1995) (“regulat[ing] court-related functions, including the administration of the Bar Association”); Juvenile Director, 87 Wn.2d at 245-46 (listing other inherent judicial powers). So, to the extent the inherent power to compel judicial funding exists, it necessarily inheres solely in the courts, as its very “purpose is to preserve the efficient and expeditious administration of Justice.” Juvenile Director, 87 Wn.2d at 245 (cleaned up).

Furthermore, it is a fundamental separation-of-powers principle that the “core” functions and inherent powers of one branch “cannot be delegated” to another branch or entity. State v. Williams, 97 Wn. App. 257, 264, 983 P.2d 687 (1999). The Washington Supreme Court has held that “the inherent power of the judiciary to require payment of necessary funds for the efficient administration of justice”—the very power Plaintiffs seek to invoke—is nondelegable. Zylstra v.

Piva, 85 Wn.2d 743, 749, 539 P.2d 823 (1975). “The court cannot . . . relinquish either its power or its obligation to keep its own house in order” through “its inherent power to control and administer its functions.”13 Id. at 748; cf. Port of That principle distinguishes this case from precedents permitting private citizens to raise separation-of-powers challenges to “an unconstitutional encroachment” on a branch’s powers. State v. Rice, 174 Wn.2d 884, 896, 279 P.3d 849 (2012). In those cases, the plaintiff was merely objecting to the encroachment.

Here, Plaintiffs are improperly seeking to exercise the inherent judicial power, 13

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Tacoma v. Parosa, 52 Wn.2d 181, 184, 324 P.2d 438 (1958) (invalidating delegation of legislative power to private party).

The nondelegation principle makes sense, because private plaintiffs do not bear the institutional costs of exercising the inherent judicial power and therefore should not be permitted to wield it. As the Washington Supreme Court has cautioned, compelling funding “outside the normal political process c[an] have an adverse effect on working relations between other branches of government and weaken public support for the judiciary.” Juvenile Director, 87 Wn.2d at 247-48.

“By its nature, litigation based on inherent judicial power to finance its own functions ignores the political allocation of available monetary resources by representatives of the people elected in a carefully monitored process.” Id. at 248.

Accordingly, courts should be circumspect in invoking their power to compel funding, and if they do so at all, must direct it “at local as distinguished from state budget authorities,” and “usually for marginal increases in personnel or equipment shown to have been previously required.” Id. at 248 n.3. Courts’ “inherent power is to be exercised only when established methods fail or when an emergency arises.” Id. at 250.

Plaintiffs’ complaint runs headlong into Juvenile Director’s warnings. They ask this Court to order funding for everything from “[h]elp for self-represented persons” to unspecified “[p]rograms to address the unique justice needs” of various “vulnerable populations.” FAC p. 49 ¶ 5.d, f. The relief they seek is not “local” or for “marginal increases,” nor is it tied to the “basic needs of the[] courts,” which itself encroaches on the judicial branch’s authority—and that authority, in turn, represents a rare exception to separation-of-powers principles.

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as defined in the relevant case law. Juvenile Director, 872 Wn.2d at 245, 247 n.3.

What’s more, Plaintiffs’ attempt to have this Court compel statewide judicial funding contravenes the Washington Supreme Court’s determination last year that it would be inappropriate to exercise its “inherent authority” to compel funding in a manner that would “impact counties across the entire state.” Rocha, 195 Wn.2d at 431.

No case has recognized a private plaintiff’s right to demand more funding for the judiciary. Indeed, the limited precedent addressing Juvenile Director confirms that the court “itself” must exercise the power “[o]n its own behalf.”14 Seattle Sch. Dist. No. 1 of King County v. State, 90 Wn.2d 476, 528, 585 P.2d 71 (1978). In Seattle School District, the Washington Supreme Court held that the “high standard” set by Juvenile Director applies in cases “dealing with Court funding” and “the financial needs of the judiciary,” and that a court invoking it must meet that standard “[o]n its own behalf.” Id. Other cases likewise reflect that inherent judicial power is exercised, if at all, by the judiciary itself. See, e.g., Rocha, 195 Wn.2d at 431-32 (declining to exercise inherent power); Bennion, Van Camp, Hagen & Ruhl v. Kassler Escrow, 96 Wn.2d 443, 452, 635 P.2d 730 (1981) (describing inherent judicial power as “be[ing] exercised by the branch . . . itself” (cleaned up)); State v. Perala, 132 Wn. App. 98, 118-19, 130 P.3d 852 (2006) (because trial courts are “charged with upholding” indigent criminal defendants’ The one decision to address the specific issue in this case—whether private plaintiffs have standing to seek court funding—is unpublished and issued prior to 2013. Woolery v. State, 171 Wn. App. 1016, 2012 WL 5347825, at *7 & n.22 (Oct. 24, 2012) (unpublished). The State therefore does not rely on it. See GR 14.1(a).

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right to counsel, court had inherent power to award compensation to appointed counsel in “emergency situation” caused by public defender’s resignation).

Plaintiffs’ complaint even acknowledges that the power to compel funding is “inherent” to the judiciary and enables “the judiciary . . . to ensure its own survival.” FAC ¶ 5.10 (emphasis added).

In sum, Plaintiffs are improperly “asserting another’s legal rights”—the exclusive right of the judicial branch to use its inherent authority to compel constitutional funding in the “rare cases” where this is warranted. Plaintiffs’ complaint must be dismissed for lack of standing for this reason alone.

C.

Plaintiffs fail to allege a constitutional injury, causation, or redressability sufficient for standing

Plaintiffs also lack standing because delays in their civil trials do not amount to a constitutional injury, and because the public records in their own underlying cases undermine their theory that delays are caused by inadequate funding or are redressable by their requested relief.

To allege injury sufficient for standing to challenge the constitutionality of court funding—assuming Plaintiffs could step into the judiciary’s shoes to do so, which they cannot—Plaintiffs would have to allege that the courts have been so underfunded that they are unable to “fulfill [their] duties.” Juvenile Director, 87 Wn.2d at 252. Notably, Plaintiffs do not allege that a single biennial budgetary request from the Chief Justice has recently gone unsatisfied by the Legislature.15

Plaintiffs’ allegation that the judicial branch is “excluded from participation” in the state budgeting process (FAC ¶ 5.9; see also id. ¶ 5.5) is incorrect as a matter of law. The judicial branch provides formal budget requests 15

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Instead, Plaintiffs attempt to show underfunding of a constitutional magnitude by citing statements from two decades’ worth of “State of the Judiciary” reports to the Legislature, including that the “trial courts have been severely challenged” or the judiciary has been “stretched thin” at times. FAC ¶¶ 5.27, 5.31. But the most recent report, from 2021—which Plaintiffs incorporate into their complaint, see FAC ¶ 1.11 n.12, ¶ 5.39 & n.39—confirms that the courts have “stayed on course” despite the unprecedented challenges posed by the pandemic.16 Likewise, Plaintiffs fail to allege any facts showing that their purported injuries are “traceable to” the alleged underfunding and “likely to be redressed by the requested relief.” Johnson, 179 Wn.2d at 552 (cleaned up). The records in Plaintiffs’ cases show that the Grant County continuance was based in part on an emergent medical circumstance; the Pierce County continuance was based on a scheduling conflict and postponed the trial for only five months; one King County case was continued due to its remarkable complexity; and the other King County continuance was partially unopposed and postponed the trial for only five months (and Plaintiff amended the complaint just yesterday, August 12). Supra at 7-9.

In no case do the allegations or underlying record suggest that the continuances were caused by underfunding by the State. Plaintiffs’ causation theory is contradicted by the judicially noticeable records of their own proceedings, meaning they have not and cannot allege facts that would establish standing.

that must be included in the Governor’s budget proposal without revision.

RCW 43.88.090(1). https://www.courts.wa.gov/newsinfo/content/StateoftheJudiciary2021.cfm, at 2, 3 (accessed Aug. 9, 2021).

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Moreover, although Plaintiffs assert claims on behalf of a putative class of other civil litigants, “[t]he procedural mechanism of a class action does not confer standing that a plaintiff does not otherwise have in an individual capacity.” Doe v.

Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 115, 780 P.2d 853 (1989). Plaintiffs’ own injuries must be caused by the challenged conduct and redressable by the requested relief. See id. Yet Plaintiffs fail to draw any connection between the various alleged budget shortfalls—for services such as interpreters, civil legal aid, and law libraries—and their trial continuances. See FAC ¶ 10.4.

What’s more, Plaintiffs allege no facts demonstrating that the State will be “issuing any budget” between now and their trial dates, much less facts establishing that the funding in such a budget could impact their trial dates. FAC p. 49, ¶ 5. Nor is there any legal basis to hold the State accountable for funding decisions made by the counties, FAC ¶¶ 2.30, 2.31, which are independent governing bodies. Supra at 3-4 & n.1. Plaintiffs lack standing for these additional, independent reasons.

II.

Plaintiffs’ Available Legal Remedies Preclude Their Request for Collateral Equitable Relief Plaintiffs’ suit is, in effect, a collateral attack on other trial courts’

discretionary management of their dockets. This Court should decline Plaintiffs’ invitation to remedy alleged delays in those cases by entertaining their request for sweeping equitable relief, where Plaintiffs have failed to exhaust available legal remedies.

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A.

The availability of adequate remedies in Plaintiffs’ pending tort suits precludes equitable relief here

It is well-established that an adequate legal remedy precludes parties from receiving equitable or mandamus relief. Stafne v. Snohomish County, 174 Wn.2d 24, 39, 271 P.3d 868 (2012) (“Declaratory relief will not be ordered where the petitioner has an adequate legal remedy.”); Kucera v. State, 140 Wn.2d 200, 209, 995 P.2d 63 (2000) (“[I]njunctive relief will not be granted where there is a plain, complete, speedy and adequate remedy at law.”); Pimentel v. Judges of King County Superior Court, 197 Wn.2d 365, 373-74, 482 P.3d 906 (2021) (absence of adequate, alternative remedy is prerequisite for mandamus).

Here, Plaintiffs have several adequate remedies available in their pending proceedings. They could seek reconsideration of the continuances. See CR 59(a); Grant Cnty. LCR 59(a); Pierce Cnty. LR 59; King Cnty. LCR 59. They could move for an expedited trial date, which is permitted upon a showing of “good cause,” including the age or health of the parties. RCW 4.44.025. In fact, the Grant County court’s last continuance order expressly invited “a motion for an expedited trial date.” See Martin Ex. H at 2. If, as Plaintiffs allege, “witnesses are elderly and may not survive until the delayed trial date,” FAC ¶ 5.82, Plaintiffs may perpetuate those witnesses’ testimony. CR 27. And Plaintiffs could seek discretionary review of purported errors by the trial courts. See RAP 2.3. The availability of these legal remedies precludes relief here.

B.

This Court should reject this collateral attack on pending proceedings in coordinate courts

Plaintiffs’ application is also improper because they ask this Court to sit in judgment of proceedings pending in coordinate courts. They seek (among other

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things) a declaration that the continuances are unconstitutional, and that “thousands” of other Washington litigants’ rights are being similarly violated.

FAC ¶¶ 5.82-5.85.

But in Washington, a trial court generally does not have the power to act in “cases . . . not pending before it,” particularly cases “pending in a different county.” Am. Mobile Homes of Wash. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 319, 796 P.2d 1276 (1990). Under the “priority of action” rule, the court that obtains jurisdiction over a case first “retains the exclusive authority” over the action “until the controversy is resolved.” Frank Coluccio Constr. Co. v. King County, 3 Wn. App. 2d 504, 518, 416 P.3d 756 (2018). Lawsuits that violate the rule are subject to dismissal. See Atl. Cas. Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 307, 153 P.3d 211 (2007).

The gravamen of Plaintiffs’ complaint is that their constitutional rights are being violated by the continuances in their pending cases. That determination is fact-specific and committed to the discretion of the presiding judges and direct appellate review. See Willapa Trading Co. v. Muscanto, 45 Wn. App. 779, 785-86, 727 P.2d 687 (1986); State v. Harp, 13 Wn. App. 273, 275, 534 P.2d 846 (1975) (assessing “unnecessary delay” based on case-specific circumstances); Endicott v.

Icicle Seafoods, 167 Wn.2d 873, 884-85, 224 P.3d 761 (2010) (assessing right to a jury trial “in a particular cause of action”). This Court should not indulge a collateral attack on its fellow trial judges’ discretion.

III.

Plaintiffs Fail to State Legally Actionable Claims Besides their lack of standing and ineligibility for collateral relief,

Plaintiffs also fail to state legally viable claims. They read into three provisions

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of the Washington Constitution duties that simply are not there: Plaintiffs’ claims of a constitutional right to State-provided court funding are contrary to those provisions’ text, history, and controlling precedent.

A.

The First Cause of Action fails because article I, section 29 contains no substantive requirement

Article 1, section 29 (FAC ¶¶ 6.1-6.4) dictates that constitutional provisions are “mandatory.” This truism does not create any independent right or duty, and so cannot function as a cause of action. See Utter & Spitzer, The Washington State Constitution 43 (2002) (noting that “courts have used this provision several times to enforce other provisions of the constitution” (emphasis added)).17 B.

The Second Cause of Action fails because the “open courts clause” creates no State funding duty

Article I, section 10 (FAC ¶¶ 7.1-7.4)—often called the “open courts clause”—provides: Justice in all cases shall be administered openly, and without unnecessary delay.

Const. art. I, § 10. Plaintiffs misconstrue this constitutional provision and ask this Court to read into it a funding guarantee that simply is not there.

Plaintiffs also briefly invoke article II, section 42. FAC ¶ 1.22. Adopted in 1962, this provision addresses governmental continuity in the event of “a catastrophic incident or enemy attack.” Such “Cold War”-era provisions refer “only to the continuity of governmental operations in the direct sense,” as when entire governmental units have “been atomized in a nuclear Armageddon” or equivalent catastrophe. Flushing Nat’l Bank v. Mun. Assistance Corp. for City of New York, 390 N.Y.S.2d 22, 29, 358 N.E.2d 848 (1976) (construing similar constitutional provision). COVID-19’s challenges have not broken the “continuity of . . . governmental operations” within the meaning of article II, section 42.

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Trial delays due to lack of court resources (even assuming that is what occurred here) do not violate section 10. The provision is “a command to the judiciary” as to how it administers “judicial proceedings,” not a mandate that the Legislature provide funding. In re Det. of Reyes, 176 Wn. App. 821, 830, 315 P.3d 532 (2013); accord Mills v. W. Wash. Univ., 170 Wn.2d 903, 914, 246 P.3d 1254 (2011) (“The Framers, it seems, had only the courts within the judicial branch in mind when they spoke of the administration of ‘justice in all cases.’”). Section 10 is a check on judges, not the Legislature or any other governmental entity. See State v. Leyerle, 158 Wn. App. 474, 479, 242 P.3d 921 (2010); cf. State v. Vukich, 158 Wn. 362, 364, 290 P. 992 (1930) (county’s policy of not calling juries during summer months did not violate the “constitutional guaranty against unnecessary delay in the administration of justice” by the courts). In short, section 10 establishes procedural rights and protections that apply to the judiciary’s administration of the cases before it. It is not a systemic funding guarantee.

Here, Plaintiffs invoke section 10 to support a claim for State funding, which is not a function of the judicial branch at all (absent an exercise of inherent authority under extraordinary circumstances that is absent here). The Washington Supreme Court has rejected similar efforts to “broadly expand[] the reach of article I, section 10.” King v. King, 162 Wn.2d 378, 390-91, 174 P.3d 659 (2007) (rejecting contention that section 10 confers “a right to publicly funded legal representation”). In short, the basic legal premise of Plaintiffs’ claim is inconsistent with controlling authority.

It is instructive to compare the open courts clause with a constitutional provision that the Washington Supreme Court has held actually mandates a

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particular level of state funding. Article IX, section 1 states: “It is the paramount duty of the state to make ample provision for the education of all children residing within its border . . . .” (emphases added). The Washington Supreme Court has stressed that this funding provision is “unique.” Seattle Sch. Dist. No. 1, 90 Wn.2d at 510. And it has cited that unique language in concluding that article IX, section 1 “imposes a judicially enforceable affirmative duty on the State” to fund education “amply.” McCleary v. State, 173 Wn.2d 477, 485, 269 P.3d 227 (2012).

For instance, by expressly “imposing the duty” on “the ‘State,’” article IX, section 1 implicates “all three branches of government.” Id. at 515. What’s more, article IX, section 1 has language permitting private plaintiffs to invoke the provision to seek funding, as its guarantee for “the education of all children residing within [Washington’s] borders” creates a “corresponding right of Washington children to receive an education.” Id. at 518. The lack of any comparable language in section 10—either in affirmatively mandating funding, identifying intended beneficiaries of such funding, or creating a duty of the “State”—confirms that section 10 establishes no funding duty. See Const. art. IV, §§ 1-31; City of Bothell v.

Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 (2011) (“When interpreting constitutional provisions, we look first to the plain language of the text”; “[t]he courts cannot engraft exceptions on the constitution, no matter how desirable or expedient such exception might seem.” (cleaned up)).

Because Plaintiffs’ section 10 claim is not legally actionable, the Court need not consider whether Plaintiffs have alleged facts sufficient to establish “unnecessary delay.” But again, Plaintiffs’ own allegations and judicially noticeable documents demonstrate that such a claim would fail, as the reasons

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for the trial continuances are substantiated in their records. Supra at 7-9. Those continuances also occurred during an unprecedented pandemic during which criminal trials necessarily took precedence. See CrR 3.3(a)(2); CR 40(c). Moreover, the undersigned counsel have not located a single decision holding that a continued civil jury trial violated section 10. This claim fails as a matter of law and must be dismissed.

C.

The Third Cause of Action fails because the right to a jury trial creates no State funding duty

Plaintiffs’ claim under article I, section 21 (FAC ¶¶ 8.1-8.3), which asserts that the State has violated Plaintiffs’ right to a jury trial, is meritless for similar reasons. Article I, section 21 (with emphasis added) provides: The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.

Plaintiffs contend that continuing their civil jury trials violated that “inviolate” right. They are wrong as a matter of law.

Like the right to access justice without unnecessary delay under section 10, the right to jury trial under section 21 creates a corresponding duty on the part of the courts—not the Legislature. In civil cases, section 21’s guarantee is implemented through CR 38, which states that “[t]he right of trial by jury as declared by article 1, section 21 of the constitution . . . shall be preserved to the parties inviolate,” and accordingly provides a procedure for making a written jury demand. CR 38(a), (b). Plaintiffs do not allege facts—because they cannot— showing that their right to a jury trial has been abridged. The tort cases are

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scheduled for jury trials in early 2022 or, in the 55-plaintiff case, early 2023.

Martin Exs. C-F. Those trials may not occur in the timeframe Plaintiffs desire, but they are all the Constitution requires.

Nothing in article I, section 21 imposes a timing requirement, and reading one in would render superfluous the speedy trial right specifically and exclusively conferred upon criminal defendants in the Constitution’s very next section. Nor is there any precedent for Plaintiffs’ novel reading; little surprise, given the practical impossibilities that would flow from a civil speedy trial right. Plaintiffs have no viable claim for relief under article I, section 21 because the provision: (1) does not contain a civil speedy trial right, (2) does not guarantee Plaintiffs the additional resources they seek; and (3) does not authorize court-ordered funding.

Article 1, section 21 does not guarantee a speedy civil trial. It says only that “[t]he right of trial by jury shall remain inviolate.” Courts construing the Constitution may not supply absent words, particularly where context shows the omission was deliberate. See City of Bothell, 172 Wn.2d at 229 (courts may not “engraft” provisions onto the Constitution). Yet that is exactly what Plaintiffs seek. The neighboring provision does contain a speedy trial right, but it expressly limits that right to “criminal prosecutions.” Const. art. I, § 22. This court should not construe section 21 (or section 10) to contain a hidden speedy trial right in civil cases, as doing so would render superfluous section 22’s speedy trial right for criminal defendants. See Farris v. Munro, 99 Wn.2d 326, 333, 662 P.2d 821 (1983) (“[T]he constitution, like statutes, should be construed so that no portion is rendered superfluous.”). Plus, maintaining the Framers’ distinction between civil and criminal trials makes sense: whereas civil proceedings must balance the

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“corollary” rights of plaintiffs and defendants, King v. Olympic Pipeline Co., 104 Wn. App. 338, 362, 16 P.3d 45 (2000), as amended on reconsideration (Feb. 14, 2001), criminal cases pose a more one-sided risk from delay, given the “oppressive pretrial incarceration” and “anxiety and concern of the accused” that can result, State v. Ollivier, 178 Wn.2d 813, 840, 312 P.3d 1 (2013) (cleaned up). This Court should not create a speedy civil trial right out of whole cloth.

Washington courts have long understood section 21 as merely “a limitation on the right of the legislature to take away the right of trial by jury.” Nielson v.

Spanaway Gen. Med. Clinic, 85 Wn. App. 249, 255, 931 P.2d 931 (1997) (cleaned up)). Furthermore, the “right of trial by jury is not limitless.” Davis v. Cox, 183 Wn.2d 269, 289, 351 P.3d 862 (2015). In civil trials, it “guarantees litigants the right to have a jury resolve questions of disputed material facts,” id., but it is not an affirmative guarantee of a civil trial within a certain timeframe, or where there are no material facts in dispute. See Furnstahl v. Barr, 197 Wn. App. 168, 175, 389 P.3d 635 (2016) (explaining that the “core” protection of the jury trial right is a litigant’s “right to have a jury resolve questions of disputed material facts”). That is why summary judgment (for instance) does not infringe the right to a jury trial. LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989).

Again, Plaintiffs do not allege any infringement of their right to have disputed factual issues determined by juries in their underlying tort cases. Their request for systemic funding increases to speed the resolution of their civil cases simply does not implicate article 1, section 21.

Additionally, Plaintiffs’ assertion that section 21 entitles them “to produce a modern trial” and receive “technological upgrades” is contrary to Washington

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Supreme Court precedent. FAC ¶¶ 5.55, 10.4. Under controlling precedent, section 21 conveys a “right to have factual questions decided by the jury,” State v.

Montgomery, 163 Wn.2d 577, 590, 183 P.3d 267 (2008), not a right to present to the jury using modern media. Also, “the extent of the right must be determined from the law and practice that existed in Washington at the time of our constitution’s adoption in 1889.” State v. Smith, 150 Wn.2d 135, 151, 75 P.3d 934 (2003). This inquiry looks to “the scope of the right” and “the causes of action to which it applies”—and the “essence of the right’s scope” is the “jury’s fact finding province.” Sofie v. Fibreboard Corp., 112 Wn.2d 636, 645, 771 P.2d 711 (1989). In other words, the right centers on the jury’s fact-finding role; it has never been understood to entitle civil litigants to publicly funded, state-of-the-art courtroom technology.

Even if Plaintiffs had alleged a violation actionable under section 21—and they have not—that section still does not authorize a court to order the wideranging funding that Plaintiffs seek. See FAC pp. 48-53. “The only remedy” for a violation of the right to a jury trial “is to grant a new trial.” Robinson v. Safeway Stores, 113 Wn.2d 154, 160, 776 P.2d 676 (1989). That exclusive remedy not only precludes the relief Plaintiffs seek here, but also underscores that the jury trial right implicates whether, not when or how, a jury trial is held. This claim, too, fails as a matter of law and must be dismissed.

D.

Plaintiffs’ other claims depend upon, and fail with, their underlying claims

Plaintiffs’ remaining claims hinge on the success of those addressed above.

They should be dismissed for the same reasons.

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The Fourth Cause of Action seeks a “declaratory judgment” on one or more of the constitutional grounds discussed above.18 FAC ¶¶ 9.1-9.2. Because the constitutional claims fail as a matter of law, Plaintiffs’ request for declaratory relief should be denied and the claim dismissed. See Thomas v. Lehman, 138 Wn. App. 618, 627, 158 P.3d 86 (2007).

The Fifth Cause of Action simply seeks injunctive relief. FAC ¶¶ 10.1-10.4.

But “an injunction is a remedy, not an independent cause of action.” Markoff v.

Puget Sound Energy, 9 Wn. App. 2d 833, 851, 447 P.3d 577 (2019). Because the substantive claims fail, so does the plea for relief.

The Sixth Cause of Action alternatively seeks a writ of mandamus. FAC ¶¶ 11.1-11.5. But mandamus “is an extraordinary remedy,” not a freestanding cause of action. Pimentel, 197 Wn.2d at 370 (cleaned up). Mandamus is appropriate only in cases involving “a clear duty to” perform “a mandatory ministerial” act. Id. at 370, 372 (cleaned up). The novel “duties” Plaintiffs allege are far from “clearly established,” nor is the extraordinary relief they seek “ministerial.” Moreover, mandamus is not available because, as discussed above, Plaintiffs have several alternative remedies available. Supra at 20-21. The mandamus claim should also be dismissed.

Among other things, the Fourth Cause of Action seeks a declaration that the State’s current funding “violates the Separation of Powers doctrine.” FAC ¶ 9.1. To the extent that statement could be construed as raising a distinct separation-of-powers claim, that claim fails as a matter of law for the reasons discussed in Parts I, II, and III.A, supra.

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IV.

Dismissal with Prejudice Is Warranted This Court has discretion to dismiss a complaint with prejudice where, as

here, “amendment would be futile.” Rodriguez, 144 Wn. App. at 730. For the reasons discussed above, Plaintiffs’ claims are fundamentally flawed as a matter of law such that further amendment could not conceivably cure their defects. The recently amended complaint comes no closer to stating a claim than the original complaint, confirming that further amendment would be futile. Dismissal with prejudice is warranted.

CONCLUSION The State respectfully requests that the Court dismiss the complaint with prejudice.

Dated: August 13, 2021

s/ Gregory F. Miller Harry H. Schneider, Jr., WSBA No. 9404 I certify that this motion/memorandum Gregory F. Miller, WSBA No. 56466 contains 8,392 words, in compliance with David T. Martin, WSBA No. 50160 the Local Civil Rules.

Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Telephone 206.359.8000 Facsimile 206.359.9000 Email: HSchneider@perkinscoie.com Email: GMiller@perkinscoie.com Email: DMartin@perkinscoie.com Kristin Beneski, WSBA No. 45478 Washington Attorney General’s Office 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744 kristin.beneski@atg.wa.gov Counsel for Defendant State of Washington

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CERTIFICATE OF SERVICE On August 13, 2021, I caused to be served upon the below named counsel of record, at the address stated below, via the method of service indicated, a true and correct copy of the foregoing document.

Karen K. Koehler Garth L. Jones Daniel R. Laurence Gemma N. Zanowski Edward H. Moore Stritmatter Kessler Koehler Moore X Attorneys for Plaintiffs

Via hand delivery Via U.S. Mail, 1st Class, Postage Prepaid Via Overnight Delivery Via Facsimile Via Eservice

I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

EXECUTED at Seattle, Washington, on August 13, 2021.

s/ June Starr June Starr, Legal Assistant

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