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Wolverton: Division III rejects Greater Harbor 2000 and Protects Taxpayer Standing to Contest Illegal Acts of Government (January 24, 2006)

In this Tri-Cities case, five co-plaintiffs appealed Franklin County Superior Court Judge Robert Swisher’s January 4, 2005 dismissal of their entire complaint with prejudice and denial of their motion to amend. Plaintiffs are individual, concerned taxpayers residing in the Tri-Cities metropolitan area. The Cities of Kennewick, Pasco, and Richland entered into an interlocal cooperative agreement pursuant to Ch. 39.34 RCW in March 1998, thereby creating the Tri-City Animal Control Authority (“ACA”). Every three years, one of the three jurisdictions is designated as the Operating Jurisdiction to administer the ACA Personal Services Agreement (“PSA”) through a contractor chosen by a competitive bidding process. The Operating Jurisdiction must establish policies for implementing an Animal Control Plan serving the citizens of all three cities through impounding, boarding, adopting out, and euthanizing apprehended animals, investigating cruelty, and notifying owners of found animals. Since 1998, the ACA has repeatedly let the contract to Defendant Tri-Cities Animal Control (“TCAC”) and its officer-employees Defendants Bruce and Sandy Young, with the latest contract term of 2004-2007. The ACA, through its PSAs, controls the means and methods of performance in the areas of impoundment, hold, redemption, humane treatment, and euthanasia.

In February 2004, one of the plaintiffs petitioned the Washington State Attorney General, ACA, all Tri-City mayors, all Tri-City prosecutors, and the Franklin County Prosecutor to stop perceived inhumane treatment at TCAC by removing the Youngs. No petitioned entity took action as requested. It became clear that the municipal defendants would not take action to correct TCAC’s alleged performance discrepancies when they re-let the competitively bid contract to TCAC for another three years (2004-2007). Based on eyewitness accounts, admissions by former TCAC employees, and a 2-day document audit revealing what appeared to be over 300 municipal hold violations (premature euthanasia and adoption) and apparently long-standing, inhumane euthanasia through underdosing, the plaintiffs filed a taxpayer action to end the suffering and demand fiscal and legal accountability. Included was a bid protest, a request for substantial injunctive and declaratory relief concerning animal care and control operations, and money damages not for the plaintiffs themselves, but as remittance to the taxpayers based on the ongoing misfeasance of TCAC’s directors, and the ACA’s ineffectual monitoring and ratification of illegal practices.

Over one year after Swisher’s decision, Division III ruled that he abused his discretion in not allowing plaintiffs to amend the complaint and reversed him on some asserted errors. Highlights follow:

Taxpayer Standing to Challenge Illegal Acts: Joining Division I (Robinson v. City of Seattle) and Division II (Kightlinger v. Clark Cy. PUD No. 1), Division III rejected Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267 (1997), the Supreme Court decision Judge Swisher relied upon in finding that the plaintiffs had no standing to challenge the validity and legality of certain governmental acts, including an alleged violation of Richland’s competitive bidding ordinances. In this rejection, Division III found that the plaintiffs did have standing to contest illegal acts.

Taxpayer Standing to Challenge Discretionary Acts: Sadly, the court concluded that no plaintiff suffered “special injury” sufficient to achieve standing to challenge discretionary acts of government. Instead, it focused on the claim that none of the animals at issue was owned by any of the plaintiffs. Though borrowing from the reasoning of Article III standing jurisprudence, the court nonetheless found no aesthetic, emotional, or other injury that set the plaintiffs apart from other taxpayers. Plaintiffs and defendants’ motions for reconsideration were denied.

Taxpayer Bid Contest: Citing Dick Enterprises v. Metro/King Cy., 83 Wash.App. 566 (1996), Division III accepted plaintiffs’ interpretation that taxpayers may contest a bid after it the contract has been signed. It suggested that if the plaintiffs’ allegations could be proven, they may prevail on remand in avoiding the contract.

Standing for Animals: The court rejected plaintiffs’ contention that they had standing as third-party beneficiaries and as next friends of the subject nonhuman animals.

Wolverton’s mandate will likely be issued by early May 2006, at which time the case will remand to Franklin County Superior Court for further litigation on remaining and amended claims, including an Animal Welfare Act and public trust doctrine challenge.

Click here for a copy of the decision. (613kb, pdf)


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