WA Supreme Court: Second Wind for BIAW Campaign Finance Suit
You know things are bad when you have two former Washington Supreme Court Justices suing you. Justices Utter and Ireland, both retired, sued the BIAW for violations of the fair campaign practices act. The trial court granted summary judgment on the matter.
I will point out that Justice Utter, unfortunately, did not live to see the fruits of this lawsuit, as he passed away in October of 2014. Justice Utter resigned from the Court in protest of the handling of a death penalty case. He was a man of conviction and an advocate for justice.
Here, the retired justices alleged BIAW failed to register as a political committee during the ’07-’08 campaign season. The case was tossed initially by the trial court. The court of appeals said that, while there may be an issue as to the violation (that BIAW was actually a political committee), that the retired justices was procedurally barred by the citizen suit provision.
So, first a little background on BIAW. They first came to my attention during the campaign of Chief Justice Gerry Alexander in 2006. BIAW spent roughly a $1,000,000 trying to unseat Chief Justice Alexander (ret.) in the primary, and pitted a BIAW crony (John Groen) against the Justice. They paid for ads claiming he was old. They paid for ads stating that an opinion reversing a conviction for a child molester, claiming that the opinion meant Alexander supported child molesters. They paid for ads claiming that because he said he supported Justice Bobbi Bridge personally as she went through a tough time with a drunk driving charge and her retirement from the Court that it meant he supported drunk driving.
It was the campaign that started the long-hard look as to whether Washington should have election of judges or an appointment-retention system. One need only look to how money influences judicial rulings in other states to know where I stand on this issue.
But back to BIAW and the 07-08 campaign. They contributed more than $7,000,000 in ads supporting Dino Rossi for governor against Christine Gregoire. The Justices found evidence of $3,500,000 in illegal funding and concealing donations, largely through funneling pooled refunds from the workers’ compensation system into the campaign.
Here, the citizen suit provision can only be had if the Attorney General is notified and declines the case. Here, the AG was notified, and then turned it over to the PDC. The question then becomes whether this turning it over is an action, or a nonfiction. Here, action means more than just doing something. The AG has to commence an action within 45 days of being notified. The Court of Appeals determined action meant any action. The Supreme Court instead held that action meant filing a lawsuit. The court of appeals strained interpretation would have meant that if the AG investigated a claim, the party could never sue, and would lead to absurd results, as the AG always investigates claims before it decides whether to sue or not.
That part satisfied, the Court agreed there was enough evidence to go forward on the claim, which hinges on whether they are a political committee. Here, a political committee is someone (or an entity) “having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot provision.” Here, BIAW expected to receive or give contributions. Their own resolution in support of Dino Rossi stated they were committing 100% of excess pooled dollars to the gubernatorial election, and the members of the organization pledged their monies to BIAW of that effort. BIAW made disclosures to the PDC that it was in fact giving funds, and it also gave funds to BIAW-MSC, which were to be expended on the campaign.
The plaintiffs' evidence that BIAW, not BIAW-MSC, solicited pledges from its local associations, and that those local associations pledged “to BIAW," not BIAW-MSC or ChangePAC, raises a question of fact as to whether BIAW had an expectation of making political expenditures, regardless of who actually ended up expending the funds.
For those who deal with this stuff regularly, I will note that Washington adopted the Primary Purpose test for expenditures, and of course here held the test was an issue of fact for trial.