Building Industry Association Of Washington, V. Governor Jay Inslee ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
July 13, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BUILDING INDUSTRY ASSOCIATION OF No. 54987-5 -II
WASHINGTON, a Washington non-profit
organization,
Appellant,
v.
JAY INSLEE in his official capacity as UNPUBLISHED OPINION
WASHINGTON STATE GOVERNOR, THE
STATE OF WASHINGTON, and the
WASHINGTON STATE DEPARTMENT OF
FISH AND WILDLIFE,
Respondents.
WORSWICK, J. — The Building Industry Association of Washington (BIAW) sought
declaratory relief to challenge the Governor’s partial veto of an environmental protection bill.
The trial court ruled that BIAW lacked standing and granted summary judgment in favor of the
Governor. BIAW argues that it has standing to bring its claim because the uncertainty created by
the veto amounts to an injury in fact. We hold that BIAW does not have standing; thus, we
affirm.
FACTS
I. CHINOOK SALMON ABUNDANCE LEGISLATION
In 2018, Governor Jay Inslee issued Executive Order 18-02, which, among other things,
created the Southern Resident Killer Whale Task Force made up of some 50 public and private
No. 54987-5-II
sector stakeholders and representatives. The Task Force was created in response to a
deteriorating water ecosystem in the Pacific Northwest that was threatening the endangered orca
whales. The Task Force’s primary goals were to increase Chinook salmon populations; decrease
risks and exposure from vessels on orcas; reduce orca exposure to contaminants; and ensure that
funding, information, and accountability mechanisms were put in place to support effective
implementation.
The Task Force issued a report with recommendations for the Washington State
Departments of Fish and Wildlife (WDFW), Natural Resources (DNR) and Ecology. Those
recommendations included enhancing WDFW’s civil penalty statute (Former RCW 77.55.291
(2018), repealed by LAWS of 2019, ch. 290, § 14) to raise the penalty amount and provide the
WDFW with “enforcement tools equivalent to those of local governments, Ecology and DNR.”1
In 2019, the House introduced House Bill (HB) 1579 to implement the recommendations
of the Task Force. HB 1579 gave WDFW enhanced authority to enforce the Washington State
Hydraulic Code and increased the civil penalty amount from up to $100 per day for violations to
“penalties of up to ten thousand dollars for every violation of [RCW 77.55] or of the rules that
1
For example, DNR and Ecology are authorized to levy penalties of up to $10,000 per day for
violations of forest practice statutes and regulations, hazardous waste laws and regulations, and
clean air laws and regulations. RCW 76.09.170, RCW 70A.300.090, RCW 70A.15.3160(1)(a).
2
No. 54987-5-II
implement [RCW 77.55].”2 Clerk’s Papers (CP) at 353; Former RCW 77.55.291 (2018).3
Throughout the drafting process in the House, the ten thousand dollar penalty amount was
consistent in each version of HB 1579.4
After arriving in the Senate, HB 1579 was taken up by the Agriculture, Water, Natural
Resources & Parks Committee. The bill passed through that Committee with an amendment that
had two components relevant here.
First, the amendment added Section 13, which created and funded three dredging projects
to aid in floodplain management strategies in three counties across Washington. SECOND
SUBSTITUTE H.B. 1579, § 13, 66th Leg., Reg. Sess. (Wash. 2019). Section 13 was not part of the
Task Force recommendations and was not designed to effectuate any of the goals of the Task
Force. Instead, Section 13 was re-introduced legislation that Senator Hobbs had previously
sponsored but had failed to pass in the House as a stand-alone bill.
2
The Hydraulic Code requires preauthorization and permitting from WDFW before undertaking
certain projects affecting State waters. See, e.g., WAC 220-660-290 (requiring advance
authorization for certain bodies of water due salmon spawning areas). Before engaging in a
project, builders can first obtain technical assistance and pre-construction determinations from
WDFW to determine compliance with the Code. WAC 220-660-480(1); Technical Assistance
Program, WASHINGTON DEPARTMENT OF FISH AND WILDLIFE: HYDRAULIC PROJECT APPROVAL
(HPA) (March 29, 2021, 10:00 AM),
https://wdfw.wa.gov/licenses/environmental/hpa/application/assistance.
3
Section 14 of HB 1579 repealed former RCW 77.55.219 (2018), which granted WDFW
authority to impose penalties for code and statutory violations.
4
(H.B. 1579, § 7, 66th Leg., Reg. Sess. (Wash. 2019)); 366 (SUBSTITUTE H.B. 1579, § 8, 66th
Leg., Reg. Sess. (Wash. 2019)); 379-380 (SECOND SUBSTITUTE H.B. 1579, § 8, 66th Leg., Reg.
Sess. (Wash. 2019)).
3
No. 54987-5-II
Second, the amendment added Subsection 8(1)(a) which provided that if Section 13 was
not enacted, the maximum penalty WDFW would be able to impose would revert to the original
$100 per day. SECOND SUBSTITUTE H.B. 1579, § 8, 66th Leg., Reg. Sess. (Wash. 2019).
Subsection 8(1)(a) states:
If section 13 of this act is enacted into law by June 30, 2019, the department may
levy civil penalties of up to ten thousand dollars for every violation of [RCW 77.55]
or of the rules that implement [RCW 77.55]. If section 13 of this act is not enacted
into law by June 30, 2019, the department may levy civil penalties of up to one
hundred dollars for every violation of this chapter or of the rules that implement
this chapter. Each and every violation is a separate and distinct civil offense.
CP at 392, 416.5
The amendment did not affect the remaining portion of Subsection 8, which governed the
WDFW penalty process.6 The Senate and the House passed Second Substitute Senate House Bill
(2SHB) 1579 as amended by the Senate. 2SHB 1579 was transmitted to the Governor for
signature or veto.
Governor Inslee vetoed two provisions of 2SHB 1579: Section 13 and Subsection 8(1)(a).
Governor Inslee released a public statement asserting that Section 13 was unconstitutional for
5
The original HB 1579 conferred authority on WDFW to impose civil penalties of up to ten
thousand dollars. See H.B. 1579, § 7, 66th Leg., Reg. Sess. (Wash. 2019).
6
WDFW has codified other enforcement and quasi-enforcement mechanisms other than civil
penalties, including compliance inspections, WAC 220-660-480(3), correction requests, (4), stop
work orders, (5), and notices to comply, (6).
4
No. 54987-5-II
being beyond the title and scope of the bill.7 Governor Inslee also asserted the Legislature
intentionally attempted to “circumvent and impede” the Governor’s “veto authority by
entangling an unrelated and unconstitutional provision within a recommendation of the task
force” by including contingency language in Subsection 8(1)(a). CP at 52-53. Governor Inslee
signed the bill as amended and directed the WDFW to undertake rulemaking to effectuate the
statute and to establish a maximum civil penalty not to exceed ten thousand dollars for every
violation, as established in the original bill.
The Legislature did not override the Governor’s veto and 2SHB 1579, as passed by the
House and Senate and vetoed by the Governor became Laws of 2019, Chapter 290.8
II. PROCEDURAL HISTORY
After passage of 2SHB 1579, the BIAW requested that WDFW engage in emergency
rulemaking to (1) repeal all existing rules based upon RCW 77.55.291 (the rulemaking authority
for establishing civil penalties, repealed by 2SHB 1579), and (2) to decline Governor Inslee’s
directive to engage in rulemaking to establish civil penalties.9 The WDFW denied BIAW’s
requests, reasoning in part that 2SHB 1579 as vetoed was presumed to be constitutional, and that
7
Article II section 19 of the Washington Constitution forbids passage of any bill that
“embrace[s] more than one subject,” and those that are not “expressed in the title.” “Logrolling,”
where legislators “attach unpopular laws to popular laws in order to gain approval for legislation
that would not otherwise pass,” is unconstitutional. Wash. Ass’n for Substance Abuse &
Violence Prevention v. State, 174 Wn.2d 642, 674-75, 278 P.3d 632 (2012). The parties do not
dispute that Section 13 is unconstitutional.
8
Chapter 290 is codified in RCW 77.55.
9
The Building Industry Association of Washington (BIAW) is a nearly 8,000 member, nonprofit
trade association that advocates for and litigates on behalf of homebuilders before the
Washington State government. BIAW members represent all aspects of home building,
including projects in coastal areas.
5
No. 54987-5-II
repeal of RCW 77.55.291 did not eliminate WDFW’s statutory authority to adopt rules and
impose civil penalties to enforce the RCW 77.55. WDFW did, however, agree not to enforce
any penalties under RCW 77.55 until it implemented final rules under 2SHB 1579.10
BIAW then filed this action in July, 2019, seeking mandamus, injunctive, and declaratory
relief against Governor Inslee and WDFW. BIAW later voluntarily dismissed all its claims
except for declaratory relief regarding the constitutionality of the Governor’s veto of Subsection
8(1)(a), and mandamus relief to require WDFW to act as if Subsection 8(1)(a) had not been
vetoed. The parties filed cross-motions for summary judgment. The Governor and the WDFW
argued, among other things, that BIAW lacked standing.
A. Roberts Declaration
In support of its motion for summary judgment, BIAW attached a declaration from Jay
Roberts. Roberts is a vice president and co-owner of a home building company on Whidbey
Island and a member of BIAW. In his declaration, Roberts explained that 2SHB 1597 as vetoed
by the Governor creates uncertainty as to the penalty structure for hydraulic permitting, which
has negative effects on his business. His declaration states:
Under [2SHB] 1579, the uncertainty and risk sky rocket for my clients. Because of
the Governor’s veto, there appears to be no fine authority contained in the bill.
However, the Department has said they intend to enter into rulemaking as if they
do have fine authority. Without a statutory basis, and especially considering the
Governor’s suggestion that the Department institute $10,000 fines, I have no idea
how high the fines could go. I believe it is my duty to inform potential clients that
the fines are likely to be higher and the delay is more unpredictable now that
[2SHB] 1579 has become law. Based on my knowledge and experience, this will
lead clients to abandon projects that they would have otherwise pursued.
10
Civil penalties for violations of chapter 77.55 RCW are codified at WAC 220-660-480(7), and
(8).
6
No. 54987-5-II
...
If the fines jump to $10,000, as the Governor suggested, each project I take on
creates a catastrophic risk for my company.
...
If the fines jump to the $10,000 amount suggested, they create risk [that] is too
great to put on my company and I will have no choice but to refuse to take on
projects that are even remotely related to water, a big cost to a Whidbey Island
company.
If rules creating a $10,000 fine are implemented, my business will be irreparably
harmed.
If the Department’s authority to issue fines is not clarified, my business will be
irreparably harmed.
CP at 186-87. Roberts did not claim to have lost a particular client or suffered any specific
financial hardship as a result of the Governor’s veto.
B. Himebaugh Declaration
BIAW also attached a declaration from Jan Himebaugh in support of its motion.
Himebaugh is the Government Affairs Director for BIAW. Himebaugh explained that the
Spokane County decision is a cause of uncertainty and interruption in the bidding and budgeting
process for homebuilder projects.11 Himebaugh also explained that uncertain regulatory risks
can cause contractors to lose business because potential clients are not willing to take the risk of
high or uncertain fines. Himebaugh’s declaration neither mentioned the Governor’s partial veto
of 2SHB 1597 nor referenced the legislation at issue in this case.
11
Spokane County v. WDFW, 192 Wn.2d 453, 455, 430 P.3d 655 (2018), held that hydraulic
projects under Chapter 77.55 RCW were within the regulatory jurisdiction of WDFW even when
they are above the ordinary high-water line affecting state waters.
7
No. 54987-5-II
C. Trial Court Decision
The trial court ruled that BIAW did not have standing, granted summary judgment in
favor of the Governor and WDFW, and dismissed BIAW’s action with prejudice. The WDFW
later adopted final rules that became effective June 12, 2020.12
D. Petition for Review and Appeal
BIAW petitioned our Supreme Court to review the trial court’s order granting Governor
Inslee and the WDFW’s motion for summary judgment and the denial of its motion for summary
judgment. A group of senators filed a brief in support of BIAW. Br. for BIAW by Amici Curiae
Senators. Our Supreme Court declined to accept review and remanded to us for consideration as
a direct appeal. Order, Building Indus. Assoc. of Wash. v. Jay Inslee, No. 98119-1 (Wash. S. Ct.,
July 8, 2020).
ANALYSIS
BIAW argues that it has standing under the Uniform Declaratory Judgments Act (UDJA)
to obtain declaratory relief to resolve the constitutionality of the Governor’s veto of Subsection
8(1)(a). It argues that the consequences of the Governor’s veto of Subsection 8(1)(a) amounts to
an injury in fact because the veto created uncertainty and insecurity for its members due to the
WDFW’s theoretical ability to enact much higher penalties than under the prior version of the
statute. BIAW further urges us to adopt a new rule and hold that “those who are governed by a
law that was unconstitutionally created have suffered sufficient harm to challenge that law, even
before the effect of the law is felt.” Br. of Appellant at 19. Alternatively, BIAW argues that this
12
Under WAC 220-660-480(7)(a), the WDFW may levy civil penalties up to ten thousand
dollars.
8
No. 54987-5-II
case is “of great public importance” and is resolvable on adequate briefing by the parties. Br. of
Appellant at 24.
The Governor and the WDFW argue that BIAW does not have standing because it has
not shown that it suffered an injury in fact where the speculative possibility of a higher penalty is
too uncertain to be cognizable by this court, and the issue involved here is not of broad
overriding import to merit our consideration.
We agree with the Governor and the WDFW and hold that BIAW has not demonstrated
that the Governor’s veto of Subsection 8(1)(a) has caused them an injury in fact. We decline
BIAW’s invitation to adopt a relaxed standard of justiciability, and we disagree with BIAW that
this case presents an issue of great public importance to warrant proceeding to the merits.
Consequently, we affirm.
A. Legal Principles and Standard of Review
When a party seeks declaratory relief, the UDJA, chapter 7.24 RCW, provides that
“[a] person . . . whose rights, status or other legal relations are affected by a statute . . . may have
determined any question of construction or validity arising under the . . . statute . . . and obtain a
declaration of rights, status or other legal relations thereunder.” RCW 7.24.020. To clarify the
boundary of this statutory right, we recognize the common law doctrine of standing, which holds
that a litigant is prohibited from raising another’s legal right to question the validity of a statute.
Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419(2004) (Grant County II). Allegations of harm must be “personal to the party” and “substantial
rather than speculative or abstract.” Grant County II, 150 Wn.2d at 802. Standing under the
UDJA is not meant to be a particularly high bar, however. Wash. State Hous. Fin. Comm’n v.
9
No. 54987-5-II
Nat’l Homebuyers Fund, Inc., 193 Wn.2d 704, 712, 445 P.3d 533 (2019). The UDJA is liberally
construed and administered. RCW 7.24.120.
Our Supreme Court has established a two-part test to determine whether there is standing
to bring a claim under the UDJA. Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 711. First, the
interest sought to be protected must be “‘arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question.’” Wash. State Hous. Fin.
Comm’n, 193 Wn.2d at 711-12 (quoting Grant County II, 150 Wn.2d at 802). Second, the
challenged action must have caused an “‘injury in fact,’ economic or otherwise, to the party
seeking standing.” Wash. State Hous. Fin Comm’n, 193 Wn.2d at 712 (quoting Save a Valuable
Env’t v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978)). Standing is a question of law
we review de novo. Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 711.
The parties do not dispute that the first step in the UDJA standing test has been met:
whether the interest sought to be protected is arguably within the zone of interests to be regulated
by the statute in question. Thus, we consider only the second part of the test: whether or not
BIAW has suffered an injury in fact.
B. Insecurity and Uncertainty
BIAW argues that the insecurity and uncertainty of its members regarding how the
WDFW will institute penalties given the Governor’s veto of Subsection 8(1)(a) constitutes an
injury in fact. We disagree.
The injury in fact test under the UDJA turns on whether a plaintiff has suffered an actual
injury. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 713, 42 P.3d
394 (2002), vacated on other grounds, 150 Wn.2d 791, 83 P.3d 419 (2004) (Grant County I).
10
No. 54987-5-II
Where the alleged harm is threatened but has not yet occurred, the plaintiff must show that “‘the
injury will be immediate, concrete, and specific; a conjectural or hypothetical injury will not
confer standing.’” Knight v. City of Yelm, 173 Wn.2d 325, 341, 267 P.3d 973 (2011) (addressing
injury in fact for standing under the Land Use Petition Act) (quoting Suquamish Indian Tribe v.
Kitsap County, 92 Wn. App. 816, 829, 965 P.2d 636 (1998)). A plaintiff whose financial
interests are affected by an action have suffered an actual injury. Grant County I, 145 Wn.2d at
713. “The interests of the [plaintiff] are not theoretical; they involve actual financial constraints
imposed upon the [plaintiff] by the challenged system itself.” Seattle Sch. Dist. No. 1v. State, 90
Wn.2d 476, 493, 585 P.2d 71 (1978).
Where anticipated financial loss is contingent upon intervening events, a showing of
direct or substantial injury threatened or suffered must include proof that such events are not so
remote or uncertain as to be less than immediate. See To–Ro Trade Shows v. Collins, 144 Wn.2d
403, 27 P.3d 1149 (2001) (holding no injury in fact where alleged financial loss suffered by trade
show company from licensure enforcement depended on unsubstantiated customer preference for
unlicensed RV dealers); Wash. Beauty Coll., Inc. v Huse, 195 Wash. 160, 80 P.2d 403 (1938)
(holding no injury in fact where alleged financial loss to hairdresser school from licensure
requirement affecting students without a high school education where contracts from such
students were not identified). BIAW provides no controlling authority for its argument that
“insecurity and uncertainty” amount to an injury in fact, but argues that Clinton v. City of N.Y.,
524 U.S. 417, 431, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998), the case striking down the federal
line-item veto, is instructive on this issue.
11
No. 54987-5-II
In Clinton, the President of the United States vetoed section 4722(c) of the Balanced
Budget Act of 1997, which revived an estimated $2.6 billion liability against the State of New
York payable to the federal government for recouping federal Medicaid payments equal to
impermissible State tax revenues on subsidized healthcare facilities. 524 U.S. at 422. New York
State law automatically extended that liability to the hospital systems throughout the state,
including the plaintiff City public healthcare system. Clinton, 524 U.S. at 426. The vetoed
section lobbied by the State of New York and passed by Congress was set to specifically resolve
the tax dispute between the State of New York and the federal government, and so also would
have negated the liability between the City and the State as a result. Clinton, 524 U.S. at 422.
The plaintiff City, through its State, requested waivers from the federal government to reduce its
tax burden, but the federal Department of Health and Human Services (HHS) took no action on
the requests. Clinton, 524 U.S. at 422.
The President argued that because the City’s public healthcare system could someday
obtain a waiver, this was enough to render the claimed injury merely speculative. Clinton, 524
U.S. at 430. The Court disagreed and held that the City did have standing notwithstanding its
failure to obtain a waiver. Clinton, 524 U.S. at 430. The Court reasoned that the legislation was
akin to a defense verdict in a multibillion dollar damages claim and the President’s veto was
analogous to an appellate court setting aside that verdict and remanding for a new trial. Clinton,
524 U.S. at 430-31. That the defendant might someday obtain the same judgment again when it
retries its case does not undo the immediate injury the defendant has suffered by being deprived
of a favorable final judgment. Clinton, 524 U.S. at 431. The City’s tax liability was both
concrete and measurable. Clinton, 524 U.S. at 430-31. The Court found the City had sustained
12
No. 54987-5-II
injury because revival of the contingent tax liability “immediately and directly affects the
borrowing power, financial strength, and fiscal planning of the potential obligor.” Clinton, 524
U.S. at 431.
Unlike the City in Clinton, BIAW has not presented any concrete figures or calculations
that inform us what constitutes its “insecurity and uncertainty.” Unlike Clinton, the vetoed
provision here is not tied to any specific financial obligation. Rather, BIAW’s claims are based
on hypothetical business loss and some future, unidentified clients’ reluctance to enter into
contracts. The plaintiff in Clinton traced the effect of the veto directly to its balance sheet.
BIAW, on the other hand, has not presented any losses or raised any facts about the actual effects
on its borrowing power, its financial strength, or its ability to conduct fiscal planning as
discussed in Clinton. Further, the liability in Clinton was contingent on HHS’s decision to not
act on any of the plaintiff’s waiver requests, which is significantly less attenuated than the
WDFW’s future discretionary rulemaking authority and the decision of hypothetical customers
to forgo a homebuilding project. Clinton does not support BIAW’s argument that it suffered an
injury in fact.
To have standing, parties’ financial interests must be affected by the outcome of a
declaratory judgment action. Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of
Yakima, 122 Wn.2d 371, 379, 858 P.2d 245 (1993). There must also be some amount of
certainty of harm to that financial interest to support standing in such a case. Yakima County,
122 Wn.2d at 379-80. For example, in Yakima County, our Supreme Court held that the Fire
District lacked an injury in fact when that injury related to possible future public land
annexations. 122 Wn.2d at 379-80. The Fire District argued that its financial interests were
13
No. 54987-5-II
affected by the validity of certain contracts where those contracts required landowners to sign a
petition for annexation of the property to the City of Yakima. Yakima County, 122 Wn.2d at
379.
In holding that the Fire District did not have standing because its financial interests were
not affected, the court reasoned that the outcome of the declaratory judgment action did not
affect the financial interests of the Fire District directly because multiple determinative
contingencies and intermediary steps still had to occur, even though holding the contracts to be
valid would make annexation easier. Yakima County, 122 Wn.2d at 380. In that case, even if the
contracts were determined to be valid, no annexation of the Fire District’s land could possibly
occur unless other third-party landowners in the area first also signed their own petitions.
Yakima County, 122 Wn.2d at 380. After that, an overwhelming majority of landowners in the
area would need to decline an administrative review to avoid another third-party approval
process by a review board. Yakima County, 122 Wn.2d at 380.
Here, BIAW has raised no more than a theoretical injury. Every claimed harm in each of
BIAW’s declarations has conditional language with accompanying future tense verbs, e.g., “If
the Department’s authority to issue fines is not clarified, my business will be irreparably
harmed.” CP at 187 (emphasis added). These claims only raise a specter of some future and
undetermined financial harm. BIAW has not shown that the “insecurity and uncertainty”
allegedly caused by the Governor’s veto is a threat to their financial interests because they have
not proffered evidence that the injury will be “immediate, concrete, and specific.”
None of the declarations show any particular contract, customer, or business that will be
lost, for example. Roberts says his business will be harmed when “the fines are likely to be
14
No. 54987-5-II
higher and the delay is more unpredictable now that [2SHB] 1579 has become law,” because he
says he has a duty to inform his customers of what the penalties could be. CP at 186. Roberts’
prediction is simply not concrete or specific enough for us to consider it an injury in fact.
Like Yakima County, BIAW’s financial interests are not necessarily affected by the
challenged provision: the validity of the Governor’s veto of Subsection 8(1)(a). The validity of
the challenged provision here is similarly not “determinative.” Yakima County, 122 Wn.2d at
380. Similar to the intermediary steps in the annexation process in Yakima County, here there
are several intermediary steps before BIAW can show injury: the outcome of WDFW’s rule
making process, the manner in which WDFW enforces compliance, and future customer’s
willingness to hire BIAW members.
For any such fine to be imposed, BIAW members would first have to engage in a covered
construction project after not availing themselves of WDFW’s preconstruction determination
process or technical support for whether they are engaging in the type of project that needs
project approval. WAC 220-660-020, 480(1); Technical Assistance Program, WASHINGTON
DEPARTMENT OF FISH AND WILDLIFE: HYDRAULIC PROJECT APPROVAL (HPA) (March 29, 2021,
10:00 AM), https://wdfw.wa.gov/licenses/environmental/hpa/application/assistance. Only after
BIAW members violated the relevant statute would the possibility of fines arise, after WDFW
decided which of its several enforcement mechanisms to apply. See WAC 220-660-480.
BIAW’s evidence of harm amounts to speculation as to whether their future customers
will turn down projects based on alleged “insecurity and uncertainty” as to the maximum penalty
amount. But BIAW has presented no evidence that it has actually lost or is threatened to lose a
15
No. 54987-5-II
bid or a contract as a result of the Governor’s veto. Thus, we hold BIAW’s bare allegation of
“insecurity and uncertainty” does not amount to an injury in fact for purposes of standing.
BIAW has only raised theoretical injuries. Because BIAW has not shown that the
Governor’s veto has harmed or threatens to harm its financial interests, we hold that “insecurity
and uncertainty” alleged here does not amount to an injury in fact.
C. Procedural or Constitutional Injury
BIAW next argues that it has standing under its newly proposed rule because the
Governor’s veto of Subsection 8(1)(a) is both procedural and constitutional in nature. BIAW
asks us to adopt a rule that “those who are governed by a law that was unconstitutionally created
have suffered sufficient harm to challenge that law, even before the effect of the law is felt.” Br.
of Appellant at 19. BIAW seeks to expand the procedural injury requirement to confer standing
upon all those who may be subject to a law that was unconstitutionally implemented. We
disagree and decline to adopt such a rule.
When a claimed injury is procedural in nature, the standing requirements are relaxed.
Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787,
794-95, 920 P.2d 581 (1996). A litigant claiming a procedural injury must “(1) identify a
constitutional or statutory procedural right that the government has allegedly violated, (2)
demonstrate a reasonable probability that the deprivation of the procedural right will threaten a
concrete interest of the party’s, and (3) show that the party’s interest is one protected by the
statute or constitution.” Five Corners Family Farmers v. State, 173 Wn.2d 296, 303, 268 P.3d
892 (2011).
16
No. 54987-5-II
BIAW cites Washington Federation of State Employees v. State, 101 Wn.2d 536, 682
P.2d 869 (1984), to support its proposition that we should expand the standing requirements. But
Washington Federation does not support BIAW’s argument. In that case, a labor union
challenged the validity of Governor Spellman’s veto of a bill that sought to change the state civil
service laws to allow seniority and performance evaluations to determine compensation and
employment decisions. Wash. Fed’n of State Emps., 101 Wn.2d at 538-39. Governor Spellman
vetoed Section 30 of that bill, which would have required legislative oversight over agency
implementation of the performance evaluation process. Wash. Fed’n of State Emps., 101 Wn.2d
at 551 (Rosellini, J., dissenting). Our Supreme Court reached the merits of the claim to uphold
the Governor’s veto, but did not address questions of standing or justiciability directly. Wash.
Fed’n of State Emps., 101 Wn.2d at 547.
BIAW states that our Supreme Court in Washington Federation “allowed the union to
challenge the law because the Court trusted the union to define what harmed its members and
because judges need not forgo common sense when establishing standing.” Br. of Appellant at
21-22. BIAW apparently reaches this conclusion entirely by inference because our Supreme
Court in Washington Federation is silent on the issue of standing in its opinion. This is because
that case came before the court as a direct review under RAP 4.2 of a summary judgment
decision from the superior court that also reached the merits of the case. Wash. Fed’n of State
Emps., 101 Wn.2d at 539. Washington Federation is not analogous to the standing issue before
us because no standing issue was before our Supreme Court. Washington Federation’s silence
on the issue of standing does not ipso facto support the existence of an inherent statutory or
procedural right.
17
No. 54987-5-II
Other than Washington Federation, BIAW does not present further discussion or
authority on the issue of procedural injury for purposes of standing. BIAW does not identify the
statutory procedural or constitutional right it claims is at stake by this alleged procedural injury,
so they fail the first prong of the test for procedural injury.
Here, the mere fact that BIAW is governed by the statute in question does not bestow a
constitutional right upon BIAW. BIAW has no more right against the Governor’s use of an
alleged unconstitutional veto than any other private party. Adopting BIAW’s proposed rule is
unsupported, impracticable, and would pry open the flood gates to constitutional challenges
beyond the prudential limits of our law of standing. We decline to expand the standing
requirements as suggested by BIAW.
D. Substantial Public Importance
BIAW argues that even if it does not have standing, we should proceed to the merits of
this case because it is an issue of public importance that is resolvable on adequate briefings. We
disagree and decline to do so.
Where there is no standing under the UDJA, “‘the court steps into the prohibited area of
advisory opinions,’” which we issue only in rare circumstances. To–Ro Trade Shows, 144
Wn.2d at 416 (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137(1973)). “[W]hen a controversy is of substantial public importance, immediately affects
significant segments of the population, and has a direct bearing on commerce, finance, labor,
industry, or agriculture” appellate courts have been willing to take a “‘less rigid and more liberal’
approach to standing.” Grant County II, 150 Wn.2d at 803 (quoting Wash. Nat. Gas Co. v. Pub.
Util. Dist. No. 1 of Snohomish County, 77 Wn.2d 94, 96, 459 P.2d 633 (1969)). We apply the
18
No. 54987-5-II
substantial public importance exception only in rare cases where the public's interest is
overwhelming and the issue has been adequately briefed and argued. To–Ro Trade Shows, 144
Wn.2d at 416.
BIAW cites to Rocha v. King County, 195 Wn.2d 412, 420, 460 P.3d 624 (2020), for the
proposition that its case is one of significant public interest. But Rocha is distinguishable. In
Rocha, a class action and declaratory judgment action brought by jurors against King County
asserted that (1) they were employees entitled to minimum wage as defined by the Minimum
Wage Act, chapter 49.46 RCW, and (2) they had an implied cause of action under RCW
2.36.080.13 195 Wn.2d at 416, 418. The trial court granted summary judgment in favor of the
County and we affirmed. Rocha, 195 Wn.2d at 419. Our Supreme Court reached the merits of
the jurors’ claims, holding that the jurors had standing under the UDJA. Rocha, 195 Wn.2d at
419. Our Supreme Court reasoned that because the claims were premised on the existence of
asserted statutory rights, the court “must analyze the merits of petitioners’ arguments to
determine whether petitioners have rights that could be asserted in a UDJA claim.” Rocha, 195
Wn.2d at 420. In contrast here, unlike the jurors in Rocha, BIAW’s claims are not premised on
the existence of statutory rights.
We decline to reach the merits of this case without finding proper standing for
declaratory relief because the validity of a veto that may or may not impact only a narrow class
of homebuilders is not a matter of “‘broad overriding public import.’” To–Ro Trade Shows 144
13
RCW 2.36.080 states in relevant part that a citizen shall not be excluded from jury service on
account of economic status. The jurors in Rocha alleged that the low compensation for jury
service had a disparate impact on low-income jurors. 195 Wn.2d at 418.
19
No. 54987-5-II
Wn.2d at 416 (quoting Diversified Indus. Dev. Corp., 82 Wn.2d at 814. BIAW’s claims are
premised on a claim of an unconstitutional Governor’s veto. No right is at stake here, statutory,
constitutional, or otherwise, that could be asserted in a UDJA claim in this case.
Thus, we hold BIAW does not have standing to bring its claim under the UDJA and that
that the issue raised in this case is not of substantial public import.
CONCLUSION
We hold that BIAW does not have standing to bring its claim under the UDJA because it
has not demonstrated an injury in fact. We decline to adopt a rule of relaxed justiciability or
consider this as a case of substantial public import. Consequently, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Lee, C.J.
Veljacic, J.
20