lcb oct 20 opma reply

8/10/2019 Lcb Oct 20 Opma Reply

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X ExpediteX Hearing set October 31, 2013X Jdge !"a##er

IN THE SUPERIOR COURT OF THE STATEOF WASHINGTON FOR THURSTON COUNTY

$ARTHUR WEST, )

plaintif, ) No. 13--!1"!3-3)

#$. ) P%AINTIFF&S) REP%Y TO n'

WASHINTON STATE, ) (OTION FOR%IUOR CONTRO% *OAR+, ) SU((ARYt al, ) U+G(ENT

'n'ant$ )%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%)%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Comes now the plaintiff, Arthur West, and respectfully responds to the 2 ndidentical

Motion for Summary Judgment filed by the State.

I INTRODUCTION

This case presents issues under the pen !ublic Meetings Act. "espite the

circumstance that all of the issues now being argued by defendants are res #udicata due to

the pre$ious determination of the Court, defendants ha$e filed a second motion ma%ing

e&actly the same arguments that ha$e pre$iously been re#ected, a $iolation of C' ((.

!laintiff hereby denies all of the $arious allegations made by counsel and their

clients to deny $iolations of the !MA, and incorporates all of the arguments and

e&hibits pre$iously submitted in response to the first motion ma%ing the same claims, andin !laintiff)s Motion for Summary Judgment.

*n addition, plaintiff see%s a continuance under C' +-f due to the e&tremely

dilatory disco$ery tactics employed by counsel and what is apparently a pattern of

1 PLAINTIFFS ARTHUR WESTREPLY OF 120 State Ave NE #1497

OCTOBER 20 O!"$a% WA 9&'01


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suppression and spoliation of material e$idence. /ess than a wee% prior to this filing

deadline, plaintiff has recei$ed $oluminous records, some of which appear to ha$e been

improperly and silently withheld from inspection under the !'A, and which materially

contradict the arguments made by counsel in this case. 0nder these circumstances a briefcontinuance is necessary for the plaintiff to re$iew the responses to disco$ery. !laintiff

has had to file documents in 2 federal cases this wee% and has a response due today in the

S!0 $ideo appeal in "i$ision * that re1uires re$iew of materials produced by o$er (

attorneys. 0nder these circumstances a 2 day e&tension of time is reasonable.

II THE DUTIES ESPECIALLY EN(OINED UPON BOARD )E)BERS UNDER

THE OP)A ARE NOT DEFINED WITH SUCH PRECISION AS TO LEA*E

NOTHIN+ TO THE E,ERCISE OF (UD+)ENT

As the defendants readily admit, 3T-e OP)A $. a /"$/ate .tatte 3$t-

$t5$/a/$e. a a/e. .t$ 6e$ $te55ete 6! t-e /5t.4 -See 'enewed Motion,

page (, lines 2(522 While plaintiff does not agree that the statute is as uncertain as the

defendants claim, they are barred and e1uitably estopped from now asserting that the law

-'CW 62.7 prescribes and defines a ministerial duty which is to be performed with

such precision and certainty as to lea$e nothing to the e&ercise of discretion or #udgment.

See 8ruse $. /o$ett, +2 Wn.2d 2(+, 726 !.2d 9(: -(:+9

The duty of an officer is ministerial, where the law prescribes and

defines a duty which is to be performed with such precision and

certainty as to lea$e nothing to the e&ercise of discretion or

#udgment. 8ruse, at 79

Therefore, by the defendants own admission, the duties specially en#oined upon

the ;oard Members of the !MA are not ministerial in nature and cannot, under thefundamental and clearly established ma&im delegatus non potest delegare, be delegated

in the manner asserted by counsel.




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III THE PEOPLE% IN DELE+ATIN+ AUTHORITY% DO NOT +I*E THEIR

PUBLIC SE*ANTS THE RI+HT TO DETER)INE WHAT IS +OOD FOR THE)

TO 8NOW BY )EANS OF I)PROPER SECONDARY DELE+ATIONS

The !MA contains a powerful public policy statement.


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ma&im eeat. te.t eea5ethat a delegated power may

not be further delegated by the person to whom such power is

delegated. Apart from statute, whether administrati$e officers in

whom certain powers are $ested or upon whom certain duties are

imposed may deputi@e others to e&ercise such powers or perform

such duties usually depends upon whether the particular act or dutysought to be delegated is ministerial, on the one hand, or on the

other, discretionary or 1uasi5#udicial. Merely ministerial acts may

be delegated to assistants whose employment is authori@ed, but

there is no authority to delegate acts discretionary or 1uasi5#udicial

in nature. . . .) -*talics ours. -The court, 1uoting herein from the

trial #udge)s memorandum opinion. Accord, Storey $. Seattle, (26

Wash. +:9, 6, 2(+ !. +(6 -(:27.

'CW 62.7.9 pro$ides...A special meeting may be called at any time by the

presiding officer of the go$erning body of a public agency or by a ma#ority of the

members of the go$erning body by deli$ering written notice personally, by mail, by fa&,

or by electronic mail to each member of the go$erning body.

This duty is specially re1uired of the members of a ;oard, ob$iously calls for the

e&ercise of discretion, and cannot be delegated.

I* THE LCB;S ACTIONS WERE DELIBERATELY DESI+NED AND

E,ECUTED TO E*ADE THE OP)A;S PUBLIC )EETIN+ RE&ecuti$e director 'ic% Bar@a testified before the ouse

finance Committee

...-in the public forums the board spent four hours, usually in thee$ening, ta%ing testimony but * thin% a lot of the wor% that was done

during the morning and afternoon in meeting with the pre$ention

community, with city officials and county officials separately and thenwith law enforcement and * thin% that it was in those meetings that we

learned a lot about some of the issues and challenges that we ha$e at the

/i1uor Control ;oard. And * thin% the first one we would mo$e to is

medical mari#uana...




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*n light of these formally attested circumstance he Court is compelled rule in

accord with Clar% $. City of /a%ewood that the /C;Ds $iolations of the !MA

undermined the legitimacy of the *5+2 'ules, since the principle that the actions of

entities li%e the /C; that are ta%en in $iolation of the !MA or tainted by secretproceedings may properly be $oided is also clearly established.

The Act pro$ides that any action ta%en at meeting failing to comply with the open

meeting re1uirements will be null and $oid. 'CW 62.7.-(. !A/ $. Adams County,

(29 Wn.2d 9:, :(7 !.2d ?:7, -(::. *n this case, the actions of the /C; were

deliberately designed to e$ade the !MA, a circumstance that mterially undercuts the

e$identiary foundation for the groups actions, as described in Clar%.

ere, whereas the ma#ority of the Tas% Eorce)s meetings leading up

the rdinance)s passage were conducted behind closed doors, the

City Council)s actual passage of the rdinance occurred at a public

meeting on May (9, (::9. Therefore, the rdinance is not null and

$oid under the !MA. *d. We conclude, howe$er, that any actionsta%en at the Tas% Eorce)s meetings that were closed to the public are

null and $oid, thereby potentially undercutting the e$identiary

foundation for the rdinance, as we discuss in the ne&t section

below. *d. at 997, :(7 !.2d ?:7. Clar%, supra, Citing !A/,

-emphasis added

The actions of the /C; in ha$ing many more secret meetings than public forums

and doing 3a lot of the wor%4 in the secret sessions demonstrate the public forums and

were merely a prete&t for the real wor%, wor% that was %nowingly and illegally performed

behind a specious $eil of secrecy in $iolation of the !MA.

V THE WITHHOLDING OF MATERIAL EVIDENCE UNDER CLAIM OF

PRIVILEGE IS IMPROPER AND IN ANY EVENT REQUIRES THAT THE

DEFENDANTS' MOTION BE DENIED

The defendants' refusal to produce the very evidence relied upon by the court

in Cathcart v. Anderson to exonerate the dean and faculty in that case from claims




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of knowing violation is improper under the precedent of Dike, Maxon and Dietz, and

further raises a presumption and inference fatal to the defendant's motion for

summary judgment.

;ecause the pri$ilege sometimes results in the e&clusion of

e$idence otherwise rele$ant and material, and may thus be contrary

to the philosophy that #ustice can be achie$ed only with the fullest

disclosure of the facts, the pri$ilege is not absolute= rather, it is

limited to the purpose for which it e&ists. "i%e $. "i%e, ?+ Wn.2d

(, ((, 669 !.2d 6: -(:9= State $. Ma&on, (( Wn.2d +6, +?,

?+ !.2d (2:? -(:99 -refusing to recogni@e parent5child

testimonial pri$ilege. As the 0nited States Supreme Court has

said

The common5law principles underlying the recognition of

testimonial pri$ileges can be stated simply. d. 996 -(:+ -1uoting 9 J.

W*BM'>, >F*">GC> H 2(:2, p. 6 -7d ed. (:6. Jaffee $.

'edmond, +(9 0.S. (, (( S. Ct. (:27, (:29, (7+ /. >d. 2d 77?-(::. >mploying the attorney5client pri$ilege to prohibit

testimony must be balanced against the benefits to the

administration of #ustice stemming from the general duty to


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rule is uniformly applied by the courts and is an integral part of our

#urisprudence.)< ;'*T*S C/0M;*A ;'>W>'*>S -(:(9 /T".

$. 8*GB C0GTK, (? Wn.2d 67?, 6++, (7+ !.2d 9? -(:67

-1uoting with appro$al 2 Am. Jur. (97, at (99. S>> ;>GBSTG

$. SA*G, 62 Wn.2d 66, 2++ !.2d 9:2 -(:+7= 8'*>B>' $.

MC/A0B/*G, + Wn.2d 6(, 7(7 !.2d 7( -(:+?.

The evidence of what counsel advised the LCB Board members on compliance

with the OPMA is material to this case, and its withholding requires an inference be

drawn that this evidence would be unfavorable to the defendants. Such a

presumption is fatal to the defendant's motion for summary Judgment on the issue

of knowledge.

VI CONCLUSION

The actions of the LCB were deliberately taken to deliberate and make

crucial policy decisions behind closed doors with law enforcement, local government

and federal officials. In this context, the evening public forums appear to have been

staged as cover for the secret daytime meetings where, as Rick Garza so publicly

testified.. a lot of the wor%...was done4.

!laintiff West is not clair$oyant or a gypsy mind reader with occult powers to testify as to

what the /C; ;oard members 3%new4, and it is unreasonable to e&pect such unattainable

e$idence. The record in this case and the e&hibits attached to the appended declaration, as well as

those pre$iously submitted demonstrate that the ;oard members had %nowledge of the

re1uirements of the !MA, and yet attended 3pri$ate4 meetings with law enforcement, local

go$ernment, and the pre$ention community where 3a lot of the wor%4 on the *5+2 rules 3wasdone4 Since no reliable record e&ists of the actual content if these secret meetings the /C;)s

action is un5re$iewable under the A!A as there can be no $alid administrati$e record of a rule

ma%ing process substantially based upon o$er a do@en secret meetings that were not recorded




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The ;oard should be found to ha$e been in %nowing $iolation of the !MA and the rules

should be similarly in$alidated under the authority of Clar% $. City of /a%ewood.

Done October 20, 2013, in Olympia.

&'(H)' *E!(



lcb oct 20 opma reply

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