[No. 76528-6. En Banc.]
Considered October 6, 2005. Decided October 13, 2005.
THE STATE OF WASHINGTON , Respondent , v. RICHARD STEPHEN JOHNSON , JR ., Petitioner .
 Robbery - Elements - Use of Force or Fear - Abandonment of Property - Effect. Under chapter 9A.56 RCW, a robbery requires the use or threatened use of force or fear to either obtain or retain property or to overcome resistance to the taking. The use of force or fear to effect an escape after peaceably-taken property is abandoned will not support a robbery conviction under chapter 9A.56 RCW.
Nature of Action: Prosecution for first degree robbery.
Superior Court: The Superior Court for Spokane County, No. 03-1-01796-6, Jerome J. Leveque, J., entered a judgment of guilty on November 12, 2003.
Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 124 Wn. App. 1039 (2004).
Supreme Court: Holding that the defendant did not commit robbery where he had peaceably taken the stolen item and abandoned it before he used force to effect an escape, the court reverses the decision of the Court of Appeals and the judgment.
Daniel H. Bigelow , for petitioner.
Steven J. Tucker , Prosecuting Attorney, and Kevin M. Korsmo , Deputy, for respondent.
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¶1 PER CURIAM - We consider whether a robbery conviction can be based upon force used to escape after peaceably-taken property has been abandoned. Concluding that the force must be used to obtain or retain property, or to prevent or overcome resistance to the taking, we reverse Richard Johnson's first degree robbery conviction.
¶2 Johnson walked into Wal-Mart, loaded a $179 television-video cassette recorder combo into a shopping cart, removed the security tag, and pushed the cart out the front door. Two security guards observed him, followed him into the parking lot, and confronted him. Johnson abandoned the shopping cart and started to run away, but suddenly turned back. One of the guards grabbed Johnson's arm. Johnson punched the guard in the nose and ran away. The guards were unable to catch him, but a police officer positioned his car in Johnson's path and arrested him.
¶3 The State charged Johnson with first degree robbery. Following a bench trial, the superior court found Johnson guilty as charged. The court entered findings of fact stating that Johnson walked away from the shopping cart and was attempting to escape the guards when he punched one of them in the nose, causing bleeding. In its conclusions of law, the court said that Washington has adopted the transactional view of robbery: "[t]herefore, even though the Defendant did not use force to obtain or retain property, he used force in an attempt to escape and inflicted bodily harm." Clerk's Papers at 73.
¶4 Johnson appealed, arguing the evidence was insufficient to support his conviction because he did not use force to obtain or retain property, but rather used force while attempting to escape after abandoning the property. The Court of Appeals affirmed his conviction, concluding robbery includes the use of force while attempting to escape or resist apprehension following a theft. We disagree with the Court of Appeals attempt to broaden the transactional view of robbery beyond the statutory elements of the crime.
¶5 A person commits robbery by unlawfully taking personal property from another against his will by the use
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or threatened use of force to take or retain the property. "Such force or fear must be used to obtain or retain possession of the property , or to prevent or overcome resistance to the taking ; in either of which cases the degree of force is immaterial." RCW 9A.56.190 (emphasis added). And a person commits first degree robbery if during the commission of a robbery, or in flight therefrom, the person inflicts bodily injury. RCW 9A.56.200 (1)(a)(iii).
¶6 This court in State v. Handburgh , 119 Wn.2d 284 , 830 P.2d 641 (1992), rejected the common law view of robbery that the force used during a robbery must be contemporaneous with the taking and found the modern transactional view properly reflected Washington's robbery statute. In Handburgh , the defendant took a girl's bicycle while she was in a recreation center. When the girl saw the defendant riding her bicycle, she demanded he return it and a fistfight ensued. This court affirmed the defendant's robbery conviction, holding that the plain language of the robbery statute says the taking can take place outside the presence of the victim, and the necessary force to constitute robbery can be found in the forceful retention of stolen property that was peaceably taken. The transactional view of robbery as defined in Washington's robbery statute requires that the force be used to either obtain or retain property or to overcome resistance to the taking.
¶7 The trial court's unchallenged findings of fact state that Johnson was trying to escape when he punched the security guard in the nose. And the trial court concluded that even though Johnson did not use force to obtain or retain the property, he was guilty of the crime because the transactional view of robbery includes force used during an escape. But as noted above, the force must relate to the taking or retention of the property, either as force used directly in the taking or retention or as force used to prevent or overcome resistance "to the taking." Johnson was not attempting to retain the property when he punched the guard but was attempting to escape after abandoning it.
¶8 We reverse Johnson's robbery conviction. No. 76462-0. En Banc.]
Argued March 17, 2005. Decided October 20, 2005.
In the Matter of the Petition of the Seattle Popular Monorail Authority To Acquire by Condemnation Certain Real Property for Public Use as Authorized by Resolution No. 04-16. HTK MANAGEMENT , L.L.C., Appellant , v. THE SEATTLE POPULAR MONORAIL AUTHORITY , Respondent .
 Municipal Corporations - Eminent Domain - Statutory Authority - Legislative Delegation - Necessity. A municipal corporation does not have inherent power of eminent domain and may exercise such power only as expressly authorized by the legislature.
 Municipal Corporations - Eminent Domain - Statutory Authority - Legislative Delegation - Construction - Implied Powers. Although statutes granting the power of eminent domain generally are strictly construed, they should not be construed so strictly as to defeat the purpose of the legislative grant. It is unnecessary for a statute granting the power of eminent domain to cover in minute detail everything that may be done to carry out its purpose; a power may be implied if its existence is reasonably necessary to effect the purpose of the condemning authority.
 Eminent Domain - Authority - Implied Power - In General. Powers reasonably necessary to carry out a statutory grant of eminent domain power may be implied from the authorizing statute or from other statutes.
 Statutes - Construction - Question of Law or Fact - Review - Standard of Review. The meaning of a statute is inherently a question of law that an appellate court reviews de novo.
 Statutes - Construction - Legislative Intent - In General. The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent. This is done by considering the statute as a whole, giving effect to all that the legislature has said, and by using related statutes to help identify the legislative intent embodied in the provision in question. If, after this inquiry, the statute can reasonably be interpreted in more than one way, then it is ambiguous and resort to principles of statutory construction to assist in interpreting the statute is appropriate. Eminent Domain - Municipal Corporations - Transportation - City Transportation Authority - Condemnation - Procedure - Governing Law. The power of eminent domain granted by RCW 35.95A.050 to a city transportation authority created under chapter 35.95A RCW is subject to the requirements of
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chapter 8.12 RCW, which governs eminent domain procedure by cities. The procedures provided by chapter 8.12 RCW satisfy the due process requirement of Const. art. I, § 16 that a method for condemnation be provided by law.
 Eminent Domain - Public Use and Necessity - Elements - Burden of Proof. For a government agency's proposed condemnation of private property to be lawful, the agency must prove that (1) the use of the property will be a public use, (2) the public interest requires the condemnation, and (3) the property to be acquired is necessary to accomplish the public purpose.
 Eminent Domain - Public Use and Necessity - Public Use - Administrative or Judicial Question - Legislative Dec- laration. Whether property sought to be condemned by a government agency will be put to a "public use" within the meaning of Const. art. I, § 16, which prohibits the taking or damaging of private property for public use without just compensation, is a judicial question for a court to determine. Although a legislative declaration that a particular use of property is a "public use" is not dispositive, it is entitled to great weight. A determination that property sought to be condemned will be put to a "public use" is not precisely the same thing as determining that condemnation is a "public necessity," even though the two terms overlap to some extent.
 Eminent Domain - Public Use and Necessity - Public Necessity - Declaration - Conclusiveness - Test. A condemning authority's declaration that a proposed condemnation of private property is necessary to accomplish the public purpose for which the property is to be condemned is conclusive in the absence of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud.
 Eminent Domain - Public Use and Necessity - Public Use - Scope - Public Transportation. Public transportation is a "public use" for which private property may be condemned in the exercise of the government's power of eminent domain.
 Eminent Domain - Public Use and Necessity - Public Necessity - Type and Extent of Property Interest Condemned - Duration - Review. The determination of the type and extent of property interest that must be condemned to carry out the public purpose of a condemnation has historically been a legislative question for the condemning authority to decide. The condemning authority's decision is analyzed by a court under the "public necessity" element for determining the validity of the condemnation, with significant deference accorded to the condemning authority's decision. Thus, whether condemnation of the fee interest in an entire parcel of land is necessary is a legislative decision for the condemning authority to make, not a judicial decision for a court. A condemning authority is not required to have a public use planned for property forever in order to justify condemning the fee interest in the property.
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 Courts - Stare Decisis - Foreign Law. Case law from other states, while not controlling, may be instructive.
 Eminent Domain - Public Use and Necessity - Public Necessity - Review - Arbitrary and Capricious - What Constitutes. A condemning authority's determination that a condemnation of private property is necessary for a public use is not arbitrary and capricious if the condemning authority's deliberations were conducted honestly, fairly, and upon due consideration of the attending facts and circumstances, even if there may be room for a difference of opinion upon the course to follow or a belief by a reviewing court that an erroneous conclusion was reached. "Necessity" requires only that the condemning authority show that the condemned property is "reasonably necessary" for the public use, not that it is absolutely necessary or indispensable. When reviewing a necessity determination, a court may consider the costs of the proposed project.
 Eminent Domain - Public Use and Necessity - Public Necessity - Type and Extent of Property Interest Condemned - Entire Fee Interest - Factors. It is not arbitrary and capricious for a condemning authority to condemn the fee interest in an entire parcel of land when current plans call for only a portion of the land to be used for a long-term public use and the remainder to be used, at least initially, as a staging area for construction and other shorter term purposes if there is a possibility that the property may be used for longer term purposes and the cost to the condemning authority of purchasing the fee interest would be less than a ground lease and construction easement for the likely period of construction.
 Eminent Domain - Attorney Fees - Statutory Provisions - Nonprevailing Condemnee. Attorney fees are not awardable under RCW 8.25.075 (1) to a party challenging the validity of a condemnation if the court concludes that the condemnor may acquire the property.
CHAMBERS , J., concurs in the result only; J.M. JOHNSON and SANDERS , JJ., dissent by separate opinion.
Nature of Action: A city transportation authority constituted to develop a monorail transportation system sought to condemn a parcel of land for a transit station and other purposes.
Superior Court: The Superior Court for King County, No. 04-2-10035-6, Jeffrey M. Ramsdell, J., entered an order of public use and necessity on September 13, 2004.Supreme Court: Holding that the city transportation authority is statutorily authorized to condemn the property
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and that its condemnation of the fee interest in the entire parcel of property is not arbitrary and capricious, the court affirms the order of public use and necessity.
George A. Kresovich and Timothy D. Benedict (of Hillis Clark Martin & Peterson, P.S. ), for appellant.
P. Stephen DiJulio and Roger D. Mellem (of Foster Pepper & Shefelman, P.L.L.C. ), for respondent.
William R. Maurer , Charity Osborn , and Jeanette M. Petersen on behalf of Institute for Justice, Washington Chapter, amicus curiae.
Daryl A. Deutsch on behalf of Paul D. and Josephine M. Fiorito, amici curiae.
Paul A. Harrel and Alan L. Wallace on behalf of AMPCO System Parking, amicus curiae.
Norm Maleng , Prosecuting Attorney, and John R. Zeldenrust , Deputy, on behalf of King County Department of Finance, amicus curiae.
Larry J. Smith on behalf of Rokan Partners, amicus curiae.
¶1 MADSEN, J. - HTK Management, L.L.C. (HTK), a property owner in downtown Seattle, challenges a trial court order adjudicating public use and necessity that authorizes Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project (SMP), a city transportation authority, to condemn its property to build a monorail station. In this case, both parties agree that the use of the property here for construction of public transportation is a funda
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mental "public use."«1»However, HTK alleges that SMP lacks statutory authority to condemn property in the first place and, alternatively, that the adjudication of public use and necessity was improper because, HTK contends, while SMP permissibly condemned a fee interest in the property comprising the monorail footprint, it should have been limited to a multiyear lease on the remainder.
¶2 We hold that SMP has statutory authority to condemn property and affirm the trial court's order adjudicating public use and necessity.
¶3 Traffic is a significant problem in the state of Washington. In 2002, the Washington Alliance for a Competitive Economy reported that "[t]ransportation remains the dominant infrastructure concern in the state, particularly in the Central Puget Sound region" and provided the following data: (1) congestion in the Seattle-Everett Corridor ranks second only to Los Angeles, (2) Washington ranks 32nd on per capita state disbursements for highways and local roads, (3) Washington's 23-cent gas tax, unchanged since 1991, ranks 14th in the nation, and (4) Seattle ranked just 64th on Expansion Management magazine's September 2001 evaluation of the "100 Most Logistics Friendly Cities."«2»
¶4 The 2002 report concludes that "[w]ith most business in Washington eventually involving the movement of goods and people through the congested metropolitan Puget
«1»Contrary to the dissent's view, the facts and legal issues in this case bear no resemblance to the recent decision in the United States Supreme Court in Kelo v. City of New London , ___ U.S. ___, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). In Kelo , the city of New London condemned property in order to develop a certain area of the city, which included the condemnation of property in order to build a private hotel and new private residences to be owned by new home owners. Id. In contrast, in this case, the property is being condemned to build a public monorail, an undisputed, historic public use.
«2»Ass'n of Wash. Business, WashACE 2002 Competitiveness Report : "Will Washington Shrug?", Transportation at http://www.awb.org/policy/competitiveness/2002reportmain.htm (last visited Oct. 18, 2005).
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Sound corridor, gridlock puts the economic competitiveness of all communities at risk."«3»
¶5 Since 1997, Seattle residents have voted four times in favor of building an expanded monorail public transportation system within the city of Seattle.«4»In November 1997, voters in the city of Seattle passed Initiative 41, creating a public development authority, the Elevated Transportation Company, to build, maintain, and operate an elevated, electrically powered mass transit system consisting of specified stations and terminals serving the four quadrants of Seattle and running through downtown. The system would be generally "X" shaped and would lie entirely within Seattle.«5»
¶6 In July 2000, the Seattle City Council passed Ordinance 120049, amending Initiative 41. Among other things, the ordinance dissolved the Elevated Transportation Company and deleted the requirement that the city council make funds available for the system if necessary by either issuing bonds or raising the city's business and occupation tax.«6»
¶7 In November 2000, voters in Seattle voted the second time for the monorail, passing Seattle Proposition No. 2 (Initiative 53), which reestablished the Elevated Transportation Company. The Elevated Transportation Company would have up to two years to complete a plan for a monorail system in Seattle. Once the monorail plan was completed, Initiative 53 provided that the Seattle City Council would be required to place the monorail plan before Seattle voters at the next election. Initiative 53 also pro
«4»Currently there is a one-mile monorail system in Seattle, operating between Seattle Center and downtown Seattle. This monorail was built for the World's Fair held in Seattle in 1962.
«5»City of Seattle Proposition No. 2 (Initiative 53: The Monorail), City Attorney's Explanatory Statement (Nov. 7, 2000), King County Records, Elections & Licensing Servs. Div., King County On-Line Voter's Pamphlet, available at http://www.metrokc.gov/elections/2000nov/pamphlet/pamph.htm (as of Oct. 18, 2005).
«6» Id .
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vided for the repeal of any ordinance that had repealed or amended prior Initiative 41 and that was inconsistent with Initiative 53, and for reinstatement of that part of Initiative 41 that had been repealed or amended.«7»
¶8 In 2002, the Washington State Legislature enacted an enabling statute which authorized voters from cities with a population over 300,000 to create a "city transportation authority" to build a public monorail within that city. Ch. 35.95A RCW. RCW 35.95A.050 provides that a city transportation authority will have a number of powers including the power to "acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of public monorail transportation facilities." RCW 35.95A.050 (1).
¶9 A city transportation authority may fix rates, tolls, fares, and charges for use of facilities and may establish various routes and classes of service. RCW 35.95A.050 (2). Additionally, a city transportation authority may "[n]otwithstanding the provision of any law to the contrary, and in addition to any other authority provided by law," contract with one or more vendors for the design, construction, operation, or maintenance or other service related to the development of a monorail public transportation system. RCW 35.95A.050 (3)(a).
¶10 Finally, among other powers, a city transportation authority will have "all other powers necessary and appropriate to carry out its responsibilities, including without limitation the power to sue and be sued, to own, construct, purchase, lease, add to, and maintain any real and personal property or property rights necessary for the conduct of the affairs of the authority, to enter into contracts, and to employ the persons as the authority deems appropriate. An authority may also sell, lease, convey, or otherwise dispose of any real or personal property no longer necessary for the conduct of the affairs of the authority." RCW 35.95A.050 (8).
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¶11 Seattle residents voted for the third time in favor of the monorail in November 2002, passing Citizen Petition No. 1: Proposed Seattle Monorail Authority. Citizen Petition No. 1 created a Seattle city transportation authority, now named Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project, respondent in this case. Citizen Petition No. 1 implemented the initial phase of a five-line city monorail system by authorizing the construction and operation of a 14-mile monorail line, the "Green Line." The Green Line will connect Ballard, Key Arena, Seattle Center, Belltown, downtown Seattle, Pike Place Market, Benaroya Hall, the ferry terminal, Pioneer Square, the Chinatown-International District, the King Street train station, Safeco Field, the Qwest Field, and West Seattle. The Green Line will have 19 monorail stations and is intended to connect with buses, ferries, light rail, and trains. Construction is scheduled to begin in 2005.
¶12 In November 2004, Seattle residents voted again, for the fourth time, for the monorail, defeating Initiative 83. Initiative 83, if enacted into law, would have forbidden the city of Seattle from allowing the use of its city rights-of-way for any new monorail transit facilities, such as the Green Line.«8»
¶13 Seattle residents voted overwhelmingly in favor of the monorail - 63.52 percent voted "no" for Initiative 83.«9»
¶14 On April 7, 2004, SMP passed Resolution No. 04-16 to acquire by condemnation certain property for the Second and Yesler station, the Pioneer Square station, in downtown Seattle. The property is currently a parking garage, commonly referred to as "the sinking ship garage" (the property). The property is owned in fee by the appellant, HTK. The property is also subject to a long-term ground
«8»City of Seattle Initiative No. 83, City Attorney's Explanatory Statement (Nov. 2, 2004), King County Records, Elections & Licensing Servs. Div., Voter's Pamphlet - Ballot Measures, General and Special Elections, available at http://www.metrokc.gov/elections/pamphlet/1204/index.htm (as of Oct. 18, 2005).
«9» Official Final Results , City of Seattle Initiative No. 83 (Nov. 2, 2004), King County General and Special Election Results , available at http://www.metrokc.gov/ elections/2004nov/resPage16.htm (as of Oct. 18, 2005).
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lease. The tenant's ground lease ends in 2010, with the tenant possessing a 10-year option to extend the lease through 2020. The Second and Yesler station will be constructed on a triangle of property bounded by Second Avenue, Yesler Way, and James Street in downtown Seattle. The Second and Yesler station will provide an intermodal transportation function with connections to the ferry system, the waterfront street car, buses, and light rail.
¶15 SMP has not yet approved a final design for the Second and Yesler station. Some preliminary designs show the station footprint covering the entire property, other more recent designs show a smaller footprint. The final design will be determined by the "Design, Build, Operate, and Maintain" contractor, with the approval of SMP's board and the city of Seattle. The parties agree that regardless of the ultimate size of the Second and Yesler station, SMP needs the entire property for construction of the staging and development of the Green Line alignment in the vicinity of the Second and Yesler station. After construction of the station, SMP currently has no planned use for any portion of the property that may remain uncovered by the final station design. SMP states that it would be premature to make definitive plans for the property that may possibly fall outside of the footprint. For example, a portion of the property may be used for loading and unloading passengers from paratransit vehicles, taxis, and tour buses. After the monorail is completed, SMP may lease or sell the unused portions of the property, if any.
¶16 On April 28, 2004, SMP filed a petition for condemnation in King County Superior Court and gave notice to HTK. On July 19, 2004, HTK entered into a stipulated order with SMP regarding the public use and necessity and preliminary possession of the subject property. HTK and SMP stipulated that the proposed use for the property is a public use, that the portion of the property covered by the station footprint is necessary for that use, and that the portion of the property not covered by the station footprint is necessary for that use until construction of the Green Line is complete.
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¶17 On August 13, 2004, HTK filed a motion to dismiss the case for lack of subject matter jurisdiction. The trial court denied that motion, ruling that because the eminent domain procedures set forth in chapter 8.12 RCW govern condemnation actions brought by SMP, SMP has statutory authority to condemn property, and therefore the trial court had subject matter jurisdiction over the condemnation action.
¶18 On September 13, 2004, the hearing on public use and necessity was held. The trial court denied HTK's motion for reconsideration of the order denying the motion to dismiss and entered an order adjudicating public use and necessity. HTK filed a notice of appeal and a motion for accelerated review. On October 1, 2004, the Court of Appeals granted HTK's motion for accelerated review.
¶19 This court accepted certification from the Court of Appeals.«10»
1. Statutory Authority for SMP to Condemn
¶20 HTK first contends that chapter 35.95A RCW, the statute authorizing creation of SMP, does not specify the procedure for SMP to exercise its condemnation power. Accordingly, HTK argues that SMP is precluded from exercising that power.
¶21 RCW 35.95A.020 (1) authorizes every city with a population greater than 300,000 to create a city transportation authority "to perform a public monorail transportation function." A city transportation authority created under the statute "is a municipal corporation, an independent taxing 'authority' within the meaning of Article VII, section 1 of the state Constitution, and a 'taxing district' within the meaning of Article VII, section 2 of the state Constitution." RCW 35.95A.020 (1).
«10»Amicus curiae briefs were submitted by the Institute for Justice, Washington Chapter, and by Paul and Josephine Fiorito.
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[1-3]¶22 A municipal corporation does not have inherent power of eminent domain and may exercise such power only as is expressly authorized by the legislature. In re Petition of Seattle, 96 Wn.2d 616 , 638 P.2d 549 (1981) ( Westlake ); City of Des Moines v. Hemenway , 73 Wn.2d 130 , 437 P.2d 171 (1968); City of Tacoma v. Welcker , 65 Wn.2d 677 , 399 P.2d 330 (1965). Statutes granting the power of eminent domain are to be strictly construed. City of Seattle v. State , 54 Wn.2d 139 , 338 P.2d 126 (1959). However, while the legislature's grant of the eminent domain power to a municipality is to be construed strictly, it is not to be construed so strictly as to defeat the purpose of the legislative grant. Welcker , 65 Wn.2d at 683 . "[I]t is not necessary that [eminent domain statutes] cover in minute detail everything which may be done to carry out their purpose. Even though a power is not given in specific words, it may be implied if its existence is reasonably necessary to effect the purpose of the condemning authority." In re Petition of Port of Grays Harbor , 30 Wn. App. 855 , 862, 638 P.2d 633 (1982) (citing State ex rel. Hunter v. Superior Court , 34 Wn.2d 214 , 217, 208 P.2d 866 (1949)); see also Chem. Bank v. Wash. Pub. Power Supply Sys ., 99 Wn.2d 772 , 792, 666 P.2d 329 (1983) ("a municipal corporation's powers are limited to those conferred in express terms or those necessarily implied").
¶23 The legislature must confer not only the power to condemn but must "prescribe the method by which it is to be done." City of Tacoma v. State , 4 Wash. 64 , 66, 29 P. 847 (1892). Where the legislature has failed to provide a procedure, "either directly or by implication or by reference to other acts having a similar purpose," the condemning entity has no authority to condemn. State ex rel. Mower v. Superior Court , 43 Wn.2d 123 , 131, 260 P.2d 355 (1953). As a general rule,
[w]hen a state delegates to a municipality the right to condemn private property for a public use but the statute delegating that authority does not provide a method for its exercise, the general law of the state prescribing the procedure, and the
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method of ascertaining the damages is, by implication, a part of the law delegating the power.
11AEUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 32.117, at 207-08 (3d ed. 2000).
¶24 SMP's condemnation powers are set forth in RCW 35- .95A.050(1). As HTK correctly states, RCW 35.95A.050 (1) does not specify the procedure that SMP must use when exercising its condemnation power. The question then is whether a method or procedure can be inferred from the statute.
¶25 Relying primarily on one case, Mower , HTK claims that condemnation procedures cannot be inferred and that the legislature must incorporate a particular Title 8 RCW procedure by reference or prescribe an alternative procedure to be used by the condemning entity in the authorizing statute. In Mower , a metropolitan park district brought a condemnation action pursuant to RCW 35.61.130 , which granted the district that authority. The property owners resisted the condemnation, claiming that the statute failed to prescribe a condemnation procedure and, therefore, the district lacked authority to condemn. Mower , 43 Wn.2d at 127 . On appeal, this court reiterated the constitutional requirement that before private property may be taken or damaged for a public or private use, just compensation must be made or be ascertained "in the manner prescribed by law." CONST . art. I, § 16. The court noted that although a number of statutes set forth condemnation procedures for particular entities, none provided procedures for park districts. The court then observed that the general procedural statute upon which the park district relied had been repealed and opined that the legislature had intended to provide specific statutory procedures for specific condemning entities. Turning to RCW 35.61.130 , the court found nothing in the district's authorizing statute, "either directly or by implication or by reference to other acts having a similar purpose," setting forth the procedure for condemnation by a metropolitan park district. Mower , 43 Wn.2d at 131 . Accordingly, the court held that the district had no
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authority to condemn the property at issue. Id. HTK claims that, as with the park district in Mower , SMP has no authority to condemn because the legislature did not provide a method for the exercise of its eminent domain power as required by article I, section 16 of the Washington Constitution.
¶26 SMP contends that HTK's reading of Mower is too broad, pointing to the language quoted above to the effect that a condemnation procedure may be implied. Further, SMP points to a distinction between RCW 35.95A.050 (1) and the statute at issue in Mower . The park district statute in that case authorized a metropolitan park district to condemn territory outside the territorial limits of the proposing city, including areas of the unincorporated county.«11»Since condemnation procedures for both cities and counties might be implicated and because the court in Mower could not reasonably infer the procedure to be used by a park district from the authorizing statute or from other statutes relating to condemnation, the court declined to "make up such procedure out of whole cloth." Mower , 43 Wn.2d at 130 .
¶27 In contrast, SMP points out that RCW 35.95A.050 (1) authorizes SMP to condemn property only within the physical confines of the proposing city. Thus, unlike the authorizing statute in Mower , SMP argues that it can reasonably be inferred from RCW 35.95A.050 that the legislature intended SMP to use the general condemnation procedures prescribed for cities in chapter 8.12 RCW. SMP reasons that RCW 35.95A.050 authorizes the city to establish a "city transportation authority" that will operate within the boundaries of the city and provides that the transportation authority is to be created by city ordinance or by petition of the city's residents. RCW 35.95A.030 (1), (2).«12»As such, SMP is a creature of the city. Accordingly, SMP contends, by
«11»A municipality has no power to condemn outside its limits in the absence of express authority to do so. Hemenway , 73 Wn.2d at 138 .
«12»An initiative passed by the electorate is the same exercise of sovereignty as that exercised by the legislative authority. Maleng v. King County Corr. Guild , 150 Wn.2d 325 , 330, 76 P.3d 727 (2003).
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necessary implication, the condemnation procedure for cities, chapter 8.12 RCW, is applicable to SMP.
¶28 HTK claims that Mower requires that a method or procedure for condemnation must be express. First, HTK argues that there is little difference between the park district in Mower and SMP because, as with a transportation authority under chapter 35.95A RCW, a park district is a municipal corporation that can be formed by only a first class city. Further, HTK contends both the park district statute and SMP's authorizing statute authorize condemnation outside their respective territorial limits. Finally, HTK argues that even if there is a distinction to be made on the scope of the condemnation power, territorial boundaries were not even mentioned by the Mower court.
¶29 We agree with SMP that HTK is reading Mower too broadly. In Mower , the court distinguished an earlier decision, Town of Redmond v. Perrigo , 84 Wash. 407 , 146 P. 838 (1915). In Perrigo the property owner argued that the city of Redmond was without power to condemn because no procedure had been provided in the act authorizing condemnation. Perrigo was proceeding under the authority of the public utilities act, authorizing cities to condemn property for the purposes of supplying water. However, that statute did not include a method of condemnation. Perrigo , 84 Wash. at 409. The court rejected the challenge to the town's condemnation authority, stating that "[w]here the power is given, a method will be accorded." Id . at 409. The court then turned to the general condemnation statute and held that the statute provided the proper method for the town to follow. Id . Mower noted that the general condemnation statute referenced in Perrigo had been repealed and, therefore, the park district could not rely on that general authority. Mower , 43 Wn.2d at 130 -31. Perrigo , like Mower , indicates that a procedure need not be expressly referenced in the authorizing statute and that general procedural statutes may impliedly provide the method for exercising the condemnation power.
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¶30 Recent cases also suggest that procedures need not be expressly referenced in condemnation statutes. In Port of Edmonds v. Northwest Fur Breeders Cooperative, Inc ., 63 Wn. App. 159 , 816 P.2d 1268 (1991), the property owners appealed an order of public use and necessity contending that the port of Edmonds had failed to give proper statutory notice of the condemnation, which was authorized at a port hearing. The port argued that RCW 53.08.010 , which authorizes ports to exercise the eminent domain power, requires the port to follow the procedure applicable to first-class cities and references chapter 8.12 RCW. The port contended that since it followed the procedures of chapter 8.12 RCW, it had satisfied statutory requirements. The Court of Appeals disagreed. It reasoned that because the condemnation was established by ordinance, the port was also required to comply with RCW 35.22.288 , governing the adoption of ordinances by first-class cities. Although the port's authorizing statute, RCW 53.08.010 , did not reference RCW 35.22.288 , the Court of Appeals nevertheless concluded that compliance with RCW 35.22.288 was required.
¶31 Similarly, Silver Firs Town Homes, Inc. v. Silver Lake Water District , 103 Wn. App. 411 , 12 P.3d 1022 (2000), lends weight to SMP's argument. There the property owner claimed that the water district was required to give public notice of proposed rate changes, pursuant to RCW 35- .22.288, which apply to first-class cities. The owner reasoned that because the district's authorizing statute, RCW 57- .08.010, requires water districts to follow eminent domain procedures for cities, it should be required to follow the notice requirements for cities when engaging in rate setting. The court declined to imply a requirement that the district comply with the notice requirements of RCW 35.22.288 because water districts are not first-class cities. The court did, however, imply a requirement that the district follow the notice requirements under the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW,
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even though the water district statute, RCW 57.08.010 , did not mention the OPMA.«13»
¶32 Considering case law both before and since Mower , we hold that powers reasonably necessary to carry out a grant of the eminent domain power may be inferred from the authorizing statute or from other statutes.
[4, 5]¶33 The next step is to determine whether chapter 35.95A RCW implies such procedures. The meaning of a statute is inherently a question of law and our review is de novo. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd. , 142 Wn.2d 543 , 555, 14 P.3d 133 (2000); Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd ., 131 Wn.2d 345 , 352, 932 P.2d 158 (1997). The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent and purpose. Am. Cont'l Ins. Co. v. Steen , 151 Wn.2d 512 , 518, 91 P.3d 864 (2004); Dep't of Ecology v. Campbell & Gwinn, L.L.C ., 146 Wn.2d 1 , 9, 43 P.3d 4 (2002). This is done by considering the statute as a whole, giving effect to all that the legislature has said, and by using related statutes to help identify the legislative intent embodied in the provision in question. Campbell & Gwinn , 146 Wn.2d at 11 . If, after this inquiry, the statute can reasonably be interpreted in more than one way, then it is ambiguous and resort to principles of statutory construction to assist in interpreting it is appropriate. State ex rel. Citizens Against Tolls (CAT) v. Murphy , 151 Wn.2d 226 , 242-43, 88 P.3d 375 (2004); Campbell & Gwinn , 146 Wn.2d at 12 .
¶34 Looking first to the language of the statute, a transportation authority can be created under RCW 35- .95A.030 through a legislative act only by a city. RCW 35- .95A.020 provides that a transportation authority created under the statute is a municipal corporation. A municipal corporation is defined as "a body politic established by law as an agency of the state - partly to assist in the civil government of the country, but chiefly to regulate and
«13»We cite the case of Fur Breeders only to demonstrate that other statutes might provide the method or procedure necessary to carry out the condemnation authority.
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administer the local and internal affairs of the incorporated city, town, or district." Lauterbach v. City of Centralia , 49 Wn.2d 550 , 554, 304 P.2d 656 (1956). Further, RCW 35- .95A.040 provides that the transportation authority is "subject to all standard requirements of a governmental entity pursuant to RCW 35.21.759 ," which imposes on public corporations the general laws regulating the local government that created the entity. Taking these provisions into account and considering the fact that the legislature intended to grant condemnation powers to an entity created pursuant to chapter 35.95A RCW, we hold that, by implication, chapter 8.12 RCW, the procedure to be followed by a city, applies to SMP.
¶35 Next, HTK argues that merely because a transportation authority can be created only by a city does not mean that chapter 8.12 RCW is the obvious statute to be applied to SMP. HTK cites Fur Breeders for the proposition that condemnation procedures for cities are not limited to chapter 8.12 RCW. However, Fur Breeders suggests that chapter 8.12 RCW, in addition to other notice statutes specifically applying to cities, provides the requirements for the exercise of the eminent domain power. SMP does not contend that it is subject only to the requirements of chapter 8.12 RCW.
¶36 Finally, SMP argues that the procedures provided for an exercise of eminent domain are necessary to satisfy due process and that due process does not require the legislature to expressly designate the procedure to be followed when there is a statutory procedure available and implied. SMP is correct. Due process concerns are at the core of article I, section 16's requirement that a method for condemnation be provided by law. HTK does not complain that its due process rights have been violated, and it has cited no case holding that due process requires the method of condemnation to be cross-referenced in legislation authorizing condemnation. Accordingly, we hold that SMP properly followed the condemnation method prescribed for cities in chapter 8.12 RCW.
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2. Public Use and Necessity Determination
¶37 Washington's constitution provides that "[n]o private property shall be taken or damaged for public or private use without just compensation having first been made." CONST . art. I, § 16. Under long standing Washington jurisprudence, this court has developed a three-part test to evaluate eminent domain cases. State ex rel. Wash. State Convention & Trade Ctr. v. Evans , 136 Wn.2d 811 , 817, 966 P.2d 1252 (1998) ( Convention Center ). For a proposed condemnation to be lawful, the condemning authority must prove that (1) the use is really public, (2) the public interest requires it, and (3) the property appropriated is necessary for that purpose. Convention Ctr., 136 Wn.2d at 817 (citing Westlake , 96 Wn.2d at 625 ; King County v. Theilman , 59 Wn.2d 586 , 593, 369 P.2d 503 (1962)).
¶38 A determination that an acquisition is for a "public use" is not precisely the same thing as determining it is a "public necessity," even though the two terms do overlap to some extent. Hemenway , 73 Wn.2d at 138 . The "question [as to] whether the contemplated use be really public shall be a judicial question." CONST . art I, § 16; Dickgieser v. State , 153 Wn.2d 530 , 535, ¶ 10, 105 P.3d 26 (2005). Although the legislature may declare that a particular use of property is a "public use," that determination is not dispositive. Dickgieser , 153 Wn.2d at 535 -36, ¶ 10. However, a legislative declaration is entitled to great weight. Westlake , 96 Wn.2d at 624 -25 (citing Hemenway, 73 Wn.2d 130 ).
¶39 In contrast, the question of necessity, and thus the standard of judicial review of a declaration of public necessity, differs from that applied to a declaration of public use. Convention Ctr. , 136 Wn.2d at 823 . A declaration of necessity by a proper municipal authority is conclusive in the absence of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud. Hemenway , 73 Wn.2d at 139 (citing Welcker , 65 Wn.2d 677 ;
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State ex rel. Church v. Superior Court , 40 Wn.2d 90 , 91, 240 P.2d 1208 (1952)).«14»
a. Public use of property to build a public monorail
¶40 Unlike in Kelo v. City of New London , ___ U.S. ___, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), in this case it is undisputed that the use to which the property is to be put - public transportation - is a clear public use. Clerk's Papers (CP) at 15 (stipulation by the parties). Indeed, public transportation has been determined to be public use for nearly 100 years in Washington. City of Seattle v. Byers , 54 Wash. 518 , 103 P. 791 (1909); State ex rel. Thomas v. Superior Court , 42 Wash. 521 , 85 P. 256 (1906).«15»
b. Whether the determination of the property to be condemned is a judicial or legislative question
[11, 12]¶41 HTK claims that SMP's decision to condemn a fee interest in the entire property should be analyzed under the first prong of the test for "public use," rather than under the third prong of the test for "necessity." HTK asserts that SMP should have decided to condemn a fee interest in only the portion of the property that was likely to contain the monorail station and to condemn an easement interest in the remainder of the property that is to be used for construction staging and development of the Green Line alignment.
¶42 SMP correctly states that determinations by the condemning authority as to the type and extent of property interest necessary to carry out the public purpose have historically been considered legislative questions and are thus analyzed under the third prong of the test. In City of Tacoma v. Humble Oil & Refining Co. , 57 Wn.2d 257 , 356 P.2d 586 (1960), property owners appealed an order of public use and necessity. In that case, the city sought to condemn a fee simple interest in the land, which would
«14»The dissent concedes that this test is the proper test to be used by this court in eminent domain proceedings.
«15»The dissent concedes that construction of the public monorail is a public use.
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include the mineral rights. This court noted that the property owners recognized the rule that " 'the action of a public agency or a municipal corporation having the right of eminent domain in selecting land for a public use will not be controlled by the courts' " and is thus a legislative question. Id . at 258 (quoting State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack , 53 Wn.2d 55 , 64, 330 P.2d 567 (1958)). See also Port of Grays Harbor , 30 Wn. App. 855 (the court finding that it was a legislative question as to whether a fee or easement property interest should be condemned). These cases providing deference to legislative questions are rooted in long standing Washington law. Since the turn of the century, Washington courts have provided significant deference to legislative determinations of necessity in the context of eminent domain proceedings. See, e.g., State ex rel. Thomas v. Superior Court , 42 Wash. 521 , 524-25, 85 P. 256 (1906).
¶43 Other states agree that a condemning authority's decision as to the type and extent of property interest is a legislative question. See, e.g ., Westrick v. Approval of Bond of Peoples Natural Gas Co. , 103 Pa. Commw. 578, 581, 520 A.2d 963 (1987) ("administrative decisions of a condemnor concerning the amount, location, or type of estate condemned are not subject to judicial review unless such decisions are in bad faith, arbitrary, capricious, or an abuse of power"; it is the condemnee's burden to prove an administrative abuse, and this burden is a heavy one to meet); City of New Ulm v. Schultz , 356 N.W.2d 846, 849 (Minn. Ct. App. 1984) (finding that acquiring a fee interest in property was reasonably necessary; city need only show that acquiring a fee interest rather than an easement was a reasonable means of acquiring airport protection privileges); Concept Capital Corp. v. DeKalb County , 255 Ga. 452, 453, 339 S.E.2d 583 (1986) (court following the rule that, " '[i]n the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken' " (quoting City of Atlanta v. Heirs of Champion , 244 Ga. 620, 621, 261 S.E.2d 343 (1979)); St.
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Andrew's Episcopal Day Sch. v. Miss. Transp. Comm'n , 806 So. 2d 1105, 1111 (Miss. 2002) (selection of the particular land to condemn as well as the amount of land necessary are legislative questions to be determined by the condemning authority). City of Phoenix v. McCullough , 24 Ariz. App. 109, 114, 536 P.2d 230 (1975) ("we believe the rule to be that a condemnor's determination of necessity should not be disturbed on judicial review in the absence of fraud or arbitrary and capricious conduct"); Regents of Univ. of Minn. v. Chi. & Nw. Transp. Co. , 552 N.W.2d 578 (Minn. Ct. App. 1996) (analyzing whether university demonstrated that proposed taking is "necessary," reviewed under the legislative standard of review).«16»
¶44 HTK claims, though, that Convention Center changes the standard of review for this case and that SMP's decision to condemn a fee interest is thus a judicial question. In Convention Center , this court addressed a proposed expansion of the Washington State Trade and Convention Center. The legislature appropriated $111.7 million for the expansion but, as a condition, required the convention center to contribute $15 million. The convention center developed a plan that involved condemning property across the street from the existing convention center. The proposed expansion would sit four stories above street level. The three floors below were to be sold to a private developer at the same time as the condemnation. The private developer would contribute $15 million and would build the outer shell of the convention center. In return, the private developer would take a fee simple title to the remaining three floors for construction of retail and parking. The court determined that the condemnation was a "public use," within the meaning of the Washington Constitution, and that the private development was "merely incidental." Convention Ctr. , 136 Wn.2d at 822 -23.
«16»The dissent criticizes the majority for citing out-of-state cases. Contrary to the dissent's claims, under long standing Washington jurisprudence out-of-state cases, while not controlling, are instructive. See, e.g., Welcker, 65 Wn.2d at 683 (citing out-of-state cases on eminent domain that follow Washington principles); Thomas , 42 Wash. at 525 (same).
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¶45 HTK claims that because the court in Convention Center held that a private use was merely incidental when it was within the "footprint" of the convention center, this court is required to undertake a "public use" examination because, in this case, property may be sold to a private party that is outside the "footprint" of the proposed monorail station.
¶46 HTK's reliance on Convention Center is misplaced and does not alter the rule, as stated in Humble Oil and in Port of Grays Harbor , that decisions as to the amount of property to be condemned are legislative questions, reviewed under the legislative standard for necessity. Moreover, in Convention Center , the court was faced with a very different situation - condemnation of property on which a significant part was never going to be put to a public use. As SMP points out here, in contrast, the entire property will be put to a public use. As discussed above, public transportation has been determined to be a public use for nearly 100 years in Washington. City of Seattle v. Byers , 54 Wash. 518 , 103 P. 791 (1909); State ex rel. Thomas v. Superior Court , 42 Wash. 521 , 85 P. 256 (1906). Although the monorail station is not likely to take up the entire footprint of the property, the record indicates that the remaining portion of the property could be used for at least 10 years for construction and remediation of property in downtown Seattle. Report of Proceedings (RP) at 12. Additionally, unlike in Convention Center , whether any portion of the property will ever be sold or leased is not known. In contrast, in Convention Center , a private developer immediately took ownership of three floors of retail space. In this case, for the first 5-10 years, a substantial portion of the property will be put to public use and only after that time is there a possibility that the property may be sold. Furthermore, the record indicates that in other cities that have constructed public monorail transportation systems, surrounding land may need to be owned permanently by the condemning authority due to the particular traffic pattern of monorail stations.
¶47 HTK counters, however, that since SMP might sell or lease surplus property, if any, after the monorail is
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completed, the court is required to undertake a searching judicial review of the necessity of SMP's determination to condemn a fee interest in the property.«17»HTK points to no authority that requires a condemning authority to have a public use planned for property forever . Indeed, long standing Washington law is to the contrary. In Reichling v. Covington Lumber Co. , 57 Wash. 225 , 106 P. 777 (1910), a property owner brought suit to enjoin logging activity on land that had been condemned earlier by the city of Seattle. Under the original condemnation, the city condemned a separate parcel of the property owner's land for purposes of its Cedar River water system. Nine years later, the city passed an ordinance whereby it granted a license to a private party to construct a logging road on the land. The property owner brought suit to enjoin the private party from entering the land. The court noted, " '[w]here a fee simple is taken, the weight of authority is that there is no reversion, but, when the particular use ceases, the property may, by authority of the state, be disposed of for either public or private uses.' " Id . at 228 (quoting JOHN LEWIS, A TREATISE ON THE LAW OF EMINENT DOMAIN § 596, at 765 (2d ed. 1888) and citing 2 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 589, at 690 (4th ed. 1890)).
¶48 The court in Reichling also cited Seattle Land & Improvement Co. v. City of Seattle , 37 Wash. 274 , 79 P. 780 (1905), finding that " '[w]here property is taken, . . . with the intention of using it for a certain purpose specified in the ordinance authorizing the taking, as was done in this case, the city, doubtless, has the authority to change said contemplated use to another and entirely different use, whensoever the needs and requirements of the city suggest.' " Reichling , 57 Wash. at 228 (quoting 37 Wash. at 277).
¶49 Given long standing, well-settled case law in Washington, providing that decisions as to the type of property interest to be acquired are reviewed under the deferential
«17»The dissent concedes that Washington Constitution article I, section 16 contains the term "public use" and does not include the term "public necessity."
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legislative standard, we hold that SMP's determination to condemn a fee interest in HTK's property is a legislative question.«18»
c. Whether a fee interest is reasonably necessary
¶50 The next step is to determine whether the condemnation of a fee interest in the entire property is "necessary" for the public use. SMP correctly cites Welcker , 65 Wn.2d at 684 -85, for the general rule that if a condemning authority has conducted its deliberations on an action "honestly, fairly, and upon due consideration" for facts and circumstances, that action will not be considered arbitrary and capricious, "even though there be room for a difference of opinion upon the course to follow, or a belief by the reviewing authority that an erroneous conclusion has been reached." Courts will consider costs of the project as a
«18»The dissent criticizes the majority and claims that the majority is "blurring" the distinctions between the constitutionally mandated inquiry into whether the use is a "public use" and the judicial corollary determining whether the condemnation is "necessary." But, it is the dissent that blurs the distinction. The dissent agrees that this court employs a three-part test to determine whether a condemnation is constitutional. Yet, in derogation of its own statement of law, it conflates the third prong of the test - the necessity question - into the first prong of the test. The dissent would read the "public use" prong to make two inquiries: (1) is the use public and, if so, (2) is the government condemning more real property than is "needed." However, as discussed above, under long standing Washington case law including Convention Center , Westlake , Humble Oil , Welcker , Hemenway , and Dickgieser , these two inquiries are separate questions and are analyzed by this court under two different standards.
In a similar vein, the dissent cites Humble Oil , claiming that Humble Oil contains a "universal rule" which is separate from the three-prong test discussed above. The dissent is again mistaken. The dissent artfully fails to explain this court's holding in Humble Oil, that "manifest abuse of discretion was not found" with this court providing the same deference given to legislative questions of "necessity." See also State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack , 53 Wn.2d 55 , 330 P.2d 567 (1958) (dissent again fails to mention this court's deference to legislative determinations as to the selection of land "reasonably necessary" and that manifest abuse of discretion was not found). Furthermore, the dissent fails to explain the context and holding of Neitzel v. Spokane International Railway Co., 65 Wash. 100 , 117 P. 864 (1911). Unlike in this case and other cases cited by the majority above, Neitzel involved a determination, years after the fact of whether a railroad had obtained a fee interest or an easement in property at a time when the extent of interests railroads could acquire in property was unclear.
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relevant factor. See e.g. , Port of Grays Harbor , 30 Wn. App. 855 ; Schultz , 356 N.W.2d 846.«19»
¶51 In this case, SMP determined that acquisition of the fee interest in property was reasonably necessary and required for the construction, operation, and maintenance of the monorail station on HTK's property and for related construction staging and development of the Green Line alignment in the vicinity of the station. SMP asserts that the SMP board of directors determined that this use was of an intensity and duration to justify the taking of the fee interest.
¶52 HTK points to a number of documents that indicate that SMP plans "Associated Development." Associated Development is defined by SMP to mean "a free standing project not connected to a station, built by a third party on land that SMP has fee ownership or some development rights and is most likely built after a station is built. The land can be sold outright or ground leased." CP at 358. HTK notes that SMP has specifically indicated that a portion of HTK's property might yield "surplus property," suitable for Associated Development. The record supports HTK's contention. At a community hearing about this monorail station, "SMP told the community that the residual property would be sold and it did not know yet how the property would be used." Resp't's Ex. 15. The revenue generated from possible transfers of "excess property" was included in SMP's earlier budgets. RP at 102. However, SMP noted in testimony that in a similarly situated property (in downtown Vancouver), the entire footprint outside that monorail
«19»The dissent concedes that this court has upheld various determinations of what constitutes necessity. "Necessity" requires only that the condemning authority show that the condemned property was "reasonably necessary" for the public use, not that it was absolutely necessary or indispensable. See, e.g., Welcker , 65 Wn.2d at 684 (the necessity requirement "embraces the right of the public to expect and demand the service and facilities to be provided by a proposed acquisition or improvement"; "[r]easonable necessity for use in a reasonable time is all that is required"). Thus, the property here is "reasonably necessary" for the public transportation project given that all of the property will be used initially for the construction of the monorail and a significant portion, and perhaps all, of the property will be used indefinitely for the monorail station and access to the station.
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station was used as a park and not developed separately due to the ongoing need for access. RP at 101.
¶53 Amicus cite the case City of Cincinnati v. Vester, 33 F.2d 242 (6th Cir. 1929), in part for the proposition that excess condemnation, taking more land than is necessary, in order to help recoup the cost of public projects is impermissible. In Vester , the city condemned property to widen a street by 25 feet. The city condemned land within that strip of land and attempted to condemn land outside of the 25-foot strip. The city was prohibited from condemning the excess property. The Sixth Circuit held that the property was only taken in order to sell it (for a private use) at a later date in order to capture the increased value that the widened street would bring. Id. «20»
¶54 SMP argues that Vester , 33 F.2d 242, is distinguishable since the city had no public use at all for the property except for possible recoupment. In contrast, in this case, SMP is only condemning property that it has determined is necessary for public use. SMP contends that the evidence demonstrates that the entire property will be used for the construction, maintenance, and operation of the monorail station and the construction staging. Moreover, the proposed station designs include plans encompassing the entire parcel. Given the cost of this undisputed present need of indefinite length and the permanent need for at least a significant portion of the property, SMP contends that the SMP board justifiably determined that the cost of the construction easement could easily eclipse the cost of a fee interest. Testimony as to fair market value of construction easements was undisputed at the hearing. Furthermore, SMP contends that a condemning body may consider financial implications when determining what interests are necessary to condemn, citing Convention Center .
«20»The United States Supreme Court affirmed, on narrower grounds. City of Cincinnati v. Vester , 281 U.S. 439, 50 S. Ct. 360, 74 L. Ed. 950 (1930) (concluding that the proceedings for excess condemnation of the properties involved in the suits were not taken in conformity with the applicable law of the state and affirming the decrees below upon that ground).
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¶55 The record supports SMP's contentions that it needs all of the property for a substantial period of time to build and construct a monorail station and may need all of it indefinitely. It is significant that testimony was undisputed that the cost of the temporary construction easement combined with likely cost of damages due to a ground lessee could eclipse the cost of a fee interest. Given the absence of actual or constructive fraud, we hold that SMP's determination to condemn a fee interest in the entire property was necessary to the public use of public transportation.«21»
¶56 HTK requests attorney fees. RCW 8.25.075 (1) provides that a superior court having jurisdiction of a proceeding instituted by a condemnor to acquire real property shall award the condemnee costs including reasonable attorney fees and reasonable expert witness fees if there is a "final adjudication that the condemnor cannot acquire the real property by condemnation." Because we conclude that SMP, the condemnor, can acquire the property, HTK, the condemnee, is properly denied attorney fees.
«21»The dissent erroneously claims that SMP has engaged in arbitrary and capricious conduct. First, as discussed above, an action taken by a municipality after proper procedural consideration is not arbitrary or capricious, even though a reviewing court may believe it is erroneous. See Welcker , 65 Wn.2d at 684 . In this case, HTK is not alleging that SMP's decision-making process was improper. Second, the dissent's reliance on Port of Everett v. Everett Improvement Co., 124 Wash. 486 , 214 P. 1064 (1923) is misplaced. Unlike the condemning authority in that case, in which there was no plan for any type of current or future construction or improvement, SMP has developed a plan for using the entire property - building the monorail. Moreover, nothing in Everett Improvement requires this court to find that the failure to have in place a definitive use plan for the entire life of the property makes the condemning authority's actions arbitrary and capricious. Second, the fact that SMP may sell or lease a part of the condemned property at some future point does not show an unconstitutional improper motive. As discussed above, in Convention Center , this court upheld the condemning entity's agreement, up front, to sell three of the four floors of the convention center to private commercial interests. Here, there is no agreement for sale and, in contrast, there is an immediate use of the entire property for construction, staging, alignment, and future operation of a monorail station.
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¶57 Consistent with our case law and public policy, courts ensure that property condemned is put to a public use, and the legislature/local governments ensure that such projects are developed in a cost effective manner. This division provides deference to local governments to determine what property is necessary to implement projects that a court has determined are for a public use. This court is both preserving important property ownership rights and ensuring that when a municipal authority condemns property for a public project, such project is truly for the "public use" within the meaning of the Washington State Constitution. Unlike in the recent United States Supreme Court case, Kelo , this case involves one of the most fundamental public uses for which property can be condemned - public transportation. Accordingly, the trial court's finding of public use and necessity is affirmed.
ALEXANDER, C.J., and C. JOHNSON, BRIDGE, OWENS, and FAIRHURST, JJ., concur.
CHAMBERS, J., concurs in the result only.
¶58 J.M. JOHNSON, J. (dissenting) - In a recent and highly publicized opinion, the United States Supreme Court justified its denial of federal constitutional protections against eminent domain abuse by acknowledging the states' power to afford their citizens greater protection against such abuse.
[N]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.
Kelo v. City of New London , __ U.S. __, 125 S. Ct. 2655, 2668, 162 L. Ed. 2d 439 (2005) (footnote omitted).
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¶59 In the wake of Kelo , legal scholars and citizens exulted that Washingtonians were insulated from such abuses because the plain language of the Washington Constitution, as previously enforced by this court, afforded broader protection against eminent domain abuse than its federal counterpart. See CONST . art. I, § 16. Unfortunately, the majority of this court is less enlightened than the citizenry or less inclined to restrain public agencies in their taking of private property. I side with the citizens and our Washington Constitution. I therefore dissent.
¶60 Special protection against taking of private property is found in our constitution's article I, section 16 "Declaration of Rights." These protections were enacted to protect citizens from abuse of government powers. The settlers of Washington came here drawn by the opportunity to own their own property and many fled from abusive governments. In this case, we have a good example.
¶61 In 1941 an immigrant railroad laborer, Henry T. Kubota, purchased the Seattle Hotel that was situated on real property in Seattle's Pioneer Square, the subject of the present litigation.«22»In the wake of Pearl Harbor, and pursuant to President Franklin D. Roosevelt's Executive Order 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942), Kubota was displaced to a Japanese-American internment camp. See generally Toyosaburo Korematsu v. United States , 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (upholding constitutionality of military order implementing Executive Order 9066). Although many internees lost all their possessions during this period, a loyal friend managed Kubota's property, returning it to him after his release.
¶62 The Seattle Hotel suffered extensive damage during the earthquake of 1949. Despite Kubota's repairs, the
«22»The parcel in question is located in historic Pioneer Square and is triangular in shape. See Pet'rs' Ex. 2, at 5. It is bordered by Second Avenue, James Street, and Yesler Way. Id .
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hotel's useful life had been exhausted by 1960, and it was demolished. Kubota then entered into a long-term lease that proposed the construction of a six-story office building atop a parking garage. To Kubota's disappointment, only the parking garage was constructed, which is now commonly referred to as the Sinking Ship garage. Kubota retained the long-term dream of a larger development. Since Kubota's death in 1989, his descendents have managed the property under his namesake, HTK Management, L.L.C. (HTK).
¶63 In 2002, the predecessor of the Seattle Monorail Project«23»(hereinafter Monorail) identified the Sinking Ship parcel as a potential monorail station site. HTK learned this information from a local newspaper rather than being contacted directly by the agency.
¶64 Shortly thereafter, HTK expressed its willingness to collaborate with Monorail so that both parties could implement their visions for the parcel - Monorail's station on a fraction of the block, coupled with HTK's redevelopment of the remainder of the parcel. The parties began planning for this complementary development. It appears HTK was more sincere than Monorail, and the agency plans took a different direction.
¶65 On April 7, 2004, Monorail passed Resolution 04-16 to acquire the entire Sinking Ship parcel by condemnation. Resp't's Ex. 13, at 8. Three weeks later, on April 28, 2004, Monorail filed a petition against HTK for condemnation in King County Superior Court, seeking a fee interest in the entirety of the parcel. Clerk's Papers (CP) at 3.
¶66 On August 13, 2004, HTK filed a motion to dismiss the condemnation action for lack of subject matter jurisdiction on the grounds that Monorail's enabling legislation failed to prescribe the agency's condemnation procedure. CP at 41. The trial court denied both HTK's motion and a
«23»The Elevated Transportation Company is the predecessor of Monorail. See City of Seattle Proposition No. 2 (Initiative 53: The Monorail). Although Monorail operates entirely within the City of Seattle, the agency is an independent municipal corporation. See majority at 621; RCW 35.95A.020 .
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subsequent motion for reconsideration. CP at 199-202, 215-16.
¶67 On September 13, 2004, the trial court held a hearing on public use and necessity in which Monorail sought to justify its condemnation of the entire parcel. Monorail conceded that the station footprint would occupy only approximately one-quarter to one-third of the parcel.«24»«25»is inherently temporary, Monorail was not justified in condemning a fee interest in the remainder property. Accordingly, HTK urged the court to grant Monorail a fee interest in the station footprint and at most a construction easement on the remainder property.
¶70 At the hearing, HTK presented evidence to demonstrate that Monorail sought to condemn more property than necessary in order to profit from the increased value of the parcel after monorail construction. The concept of agency profit from such land transactions was discussed by Monorail from its very inception. The petition creating the monorail noted:
Rights of Way: Market value paid on the limited number of properties that must be acquired, some easements to be purchased, and high-value properties resold when construction is completed .
Resp't's Ex. 20, at 44 (emphasis added).
¶71 Monorail subsequently adopted an internal development policy that anticipated selling "remainder property" to private developers. Referred to as "associated development," Monorail defines it as:
a free standing project not connected to a station, built by a third party on land that SMP has fee ownership or some development rights and is most likely built after a station is built. The land can be sold outright or ground leased.
«25»This is temporary parking and not long-term parking for monorail patrons. See "staff and labor parking" on preceding diagram. There will be substantially less parking than the present public garage.
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Resp't's Ex. 12, at 1. After adopting this "associated development" policy, Monorail even sought out "site specific recommendations for [associated] types of development opportunities." Id.
¶72 Monorail also emphasized its "associated development" policy in the Design-Build-Equip Contract - the contract to be awarded to the winning bidder for construction of the monorail.«26»
The SMP has and will be acquiring property for Stations and is interested in maximizing the development potential of such properties. In some instances, the SMP will be required to acquire a complete site and may, once the Station is complete, sell or lease a portion of the site to private parties who would develop this excess property for commercial use . This type of development is referred to as "Associated Development."
Resp't's Ex. 26, at DBEC-222 (emphasis added).
¶73 In addition to these monorail policies, HTK provided specific evidence that Monorail planned "associated development" for this Sinking Ship parcel. The Transit Way Agreement«27»planned for "[a]ssociated development of the unused portion of the parcel bounded by 2nd Avenue, James Street and Yestler Way (a.k.a., 'Sinking Ship Garage.')." Ex. C (Resp't's Ex. 23), at 4. The agreement set "associated development" for the Sinking Ship parcel as a "priority." Id. Moreover, at a Pioneer Square community meeting, the "[Monorail] told the community that the residual property would be sold and it did not know yet how the property would be used." Resp't's Ex. 15.
¶74 To this evidence Monorail responded that it had no definitive postconstruction plans for the remainder property and that absent a demonstration of fraud or bad faith, the agency was entitled to condemn the parcel in its entirety. The trial court entered a judgment of public use and necessity. HTK now appeals.
«26»There was actually only one bidder.
«27»The Transit Way Agreement between the City of Seattle and Monorail establishes conditions under which Monorail may use the city's rights-of-way.
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A. Procedures for Condemnation
¶75 Petitioners first assert that the trial court lacked jurisdiction over this matter because Monorail's enabling act fails to expressly prescribe the procedures by which the agency exercises its eminent domain authority. See State ex rel. Mower v. Superior Court , 43 Wn.2d 123 , 260 P.2d 355 (1953). With respect to this argument, however, I reluctantly conclude with the majority that lack of such procedures did not deprive the trial court of jurisdiction.
¶76 The statute does specify that Monorail could "acquire by . . . condemnation." RCW 35.95A.050 (1).«28»Our case law establishes that condemnation procedures may be fairly implied if necessary to effectuate the legislature's intent. See In re Petition of Seattle , 96 Wn.2d 616 , 629, 638 P.2d 549 (1981) ( Westlake ). In addition, the differences between procedural statutes are largely inconsequential and "embrace the same procedural theory, namely . . . the entry of three separate and distinct judgments during the course of a proceeding." Pub. Util. Dist. No. 1 v. Wash. Water Power Co. , 43 Wn.2d 639 , 641, 262 P.2d 976 (1953). The determination that Monorail's condemnation procedures may be fairly implied from an express grant of authority does not address the scope of the condemnation authority. This is a constitutional issue that I believe is determinative here.
B. Scope of Condemnation Authority
¶77 Municipal corporations do not possess an inherent power of eminent domain and thus may exercise such power only when expressly authorized to do so by the state legislature. See, e.g. , State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack , 53 Wn.2d 55 , 60, 330 P.2d 567 (1958). Statutes conferring such power are in derogation of the common right, State ex rel. King County v. Superior Court , 33 Wn.2d
«28»Fully quoted infra p. 646.
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76, 82, 204 P.2d 514 (1949), and "must be strictly construed, both as to the extent of the power and as to the manner of its exercise."«29» State ex rel. Postal Tel.-Cable Co. v. Superior Court , 64 Wash. 189 , 193, 116 P. 855 (1911).
¶78 Monorail is a special purpose district that performs a single, narrowly circumscribed function: construction and operation of a monorail.«30»The extent of Monorail's condemnation powers are set forth in RCW 35.95A.050 (1), which authorizes city transportation authorities:
To acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of public monorail transportation facilities, including passenger terminal and parking facilities and properties, and other facilities and properties as may be necessary for passenger and vehicular access to and from public monorail transportation facilities, together with all lands, rights of way, and property within or outside the authority area, and together with equipment and accessories necessary or appropriate for these facilities . . . .
RCW 35.95A.050 (1). Although Monorail is entitled to acquire property by "condemnation," the purposes of the condemnation must be for the purpose of "public monorail transportation facilities." In addition, any condemnation must not violate our constitutional prohibition against the taking of private property for private purposes.
Private property shall not be taken for private use. . . . No private property shall be taken or damaged for public or private use without just compensation having been first made. . . . Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and
«29»All delegations of state authority are to be construed strictly, and this is " 'especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other.' " State ex rel. Chesterley v. Superior Court , 19 Wn.2d 791 , 800, 144 P.2d 916 (1944) (quoting JOHN LEWIS, 1 A TREATISE ON THE LAW OF EMINENT DOMAIN IN THE UNITED STATES § 388, at 708 (3d ed. 1909)).
«30»The majority suggests, for example, that the agency could create a park out of the excess Sinking Ship property. However, under our cases, construction of a park likely exceeds Monorail's enabling legislation.
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DETERMINED AS SUCH, WITHOUT REGARD TO ANY LEGISLATIVE ASSERTION THAT THE USE IS PUBLIC.
CONST . art. I, § 16 (emphasis added).
¶79 To determine whether the use of the eminent domain power is allowed by our constitution, we employ a three-part test:
(1) that the use is really public, (2) that the public interests require it, and (3) that the property appropriated is necessary for the purpose.
Westlake , 96 Wn.2d at 625 (citing King County v. Theilman , 59 Wn.2d 586 , 593, 369 P.2d 503 (1962)). See also State ex rel. Wash. State Convention & Trade Ctr. v. Evans , 136 Wn.2d 811 , 817, 966 P.2d 1252 (1998) ( Convention Center ).
¶80 As we are dealing with constitutional rights of the legal owner, the burden of proof is on the condemning agency, not on the condemnee, to demonstrate that the condemnation is for a public use and that it is necessary for that public use. Convention Ctr., 136 Wn.2d at 822 -23; Theilman , 59 Wn.2d 586 ; State ex rel. Sternoff v. Superior Court , 52 Wn.2d 282 , 325 P.2d 300 (1958).
¶81 As the majority correctly states, the determination that a condemnation is for a public use is not the same thing as public necessity. See, e.g. , Theilman , 59 Wn.2d at 594 (" 'Public use' and 'necessity' cannot be separated with scalpellic precision, for the first is sufficiently broad to include an element of the latter."). In article I, section 16 our state constitution directly addresses only the "public use" inquiry. See State ex rel. Puget Sound Power & Light Co. v. Superior Court , 133 Wash. 308 , 311, 233 P. 651 (1925). The remaining two inquiries regarding public interest and necessity are judicial corollaries to enforce the constitutional mandate. Unfortunately, the majority errs by greatly blurring the distinctions between the constitutionally mandated inquiry into public use and the judicial corollary of necessity. There are two inquiries: Is this property necessary for the public purpose? Is all this property necessary for the public purpose? Here, the wrong answer to the latter
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inquiry is given, and a violation of constitutional rights results.
C. Public Use
¶82 As previously stated, the inquiry into public use is constitutional in nature. As an initial matter, the majority states that a legislative declaration of public use is "entitled to great weight." Majority at 629 (citing Hemenway , 73 Wn.2d 130 ). It is stupefying that the majority claims that we must give "great weight" to such determinations when our constitution mandates that this " shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public." CONST . art. I, § 16 (emphasis added).
¶83 Use of the word "shall" is imperative and operates to create a duty rather than to confer discretion. See, e.g., Crown Cascade, Inc. v. O'Neal , 100 Wn.2d 256 , 668 P.2d 585 (1983). Moreover, "regard" is defined as "to look at," "show respect or consideration for," "to take into consideration or account," or "to pay attention." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1911 (2002).
¶84 Thus, when our constitution states that the courts must make this determination "without regard to any agency's legislative assertion," it means that we must not show deference to the legislative assertion of public use; we decide the question independently. The plain language of our constitution does not require any deference and in fact mandates exactly the opposite. To the extent that this assertion by the majority is based on erroneous jurisprudence, it defies the plain language of our constitution and should be overruled. Not surprisingly, more persuasive case law also supports the contrary conclusion, that the question is judicial.«31»
«31»We have stated on numerous occasions that "[s]tate cases and statutes from the time of the constitution's ratification, rather than recent case law, are more persuasive in determining" the protections of a constitutional provision. Ino Ino, Inc. v. City of Bellevue , 132 Wn.2d 103 , 120, 937 P.2d 154 (1997). Our early jurisprudence demonstrates that legislative determinations of public use are not entitled to great weight. See, e.g ., Decker v. State , 188 Wash. 222 , 227, 62 P.2d 35 (1936) ("[W]hether the use be 'really public' is for the courts to determine, and in the determination of that question they will 'look to the substance rather than the form, to the end rather than to the means.' " (quoting State ex rel. Puget Sound Power & Light Co. v. Superior Court , 133 Wash. 308 , 233 P. 651 (1925))); State ex rel. Andersen v. Superior Court , 119 Wash. 406 , 410, 205 P. 1051 (1922) ("The legislature can declare in the first instance that the purpose is a public one, and it remains the duty of the court to disregard such assertion if the court finds it to be unfounded."); Langdon v. City of Walla Walla , 112 Wash. 446 , 456, 193 P. 1 (1920) ("We shall assume that the question of public use is a judicial question in Oregon, as it is in our state, and that such question has been and will be decided by the courts of that state . . . ."); Healy Lumber Co. v. Morris , 33 Wash. 490 , 501, 74 P. 681 (1903) ("Under such circumstances the case comes to the court without any presumption one way or the other on the subject of public use, but is to be tried by the court like any other question that is submitted to its discretion.").
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¶85 Although we have not settled onto one single definition of public use, we have always indicated it means more than mere beneficial use. Westlake, 96 Wn.2d at 627 . In Convention Center , we explained the constitutional test for adjudicating public use.
Article I, section 16 prohibits the taking of private property for private use. Thus, this court must ensure that the entire parcel subject to the eminent domain proceedings will be employed by the public use . The relevant inquiry is whether the government seeks to condemn any more property than would be necessary «32» to accomplish purely the public component of the project. If the anticipated public use alone would require taking no less property than the government seeks to condemn, then the condemnation is for the purpose of a public use and any private use is incidental.
Convention Ctr. , 136 Wn.2d at 822 (emphasis added). In other words, our constitutionally mandated public use inquiry seeks to determine whether the government is condemning any more real property than needed for the project.
¶86 The rule as articulated in Convention Center has deep roots in our eminent domain jurisprudence. For example, in Stojack , 53 Wn.2d at 63 -64, we stated that:
«32»The use of the term "necessary" is unfortunate because it is also a term of art in eminent domain jurisprudence. However, there can be no equivocation that this analysis in Convention Center was regarding public use and not necessity. This analysis was completed specifically under the header of "public use" and was later followed by a separate section on "necessity."
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[p]ublic education is a public use for which private property may be appropriated under the power of eminent domain. If an attempt is made to take more property than is reasonably necessary to accomplish the purpose, then the taking of excess property is no longer a public use , and a certificate of public use and necessity must be denied.
Accord 9 NICHOLS ON EMINENT DOMAIN § 32.05 (3d ed. 2005); City of Pullman v. Glover , 73 Wn.2d 592 , 595, 439 P.2d 975 (1968) ("[T]he extent of the taking may be no greater than is reasonably necessary for the stated public purpose.").
¶87 This same rule has also been reiterated with respect to the interest to be acquired.
When a legislature delegates to any subordinate agency, such as a municipality or a public service corporation, the right and authority to exercise the power of eminent domain, it ordinarily defines the estate or interest to be appropriated, having power to authorize the taking of a complete fee simple title, a qualified fee, or an easement only. When it has prescribed by statute the extent of interest to be vested, none further can be taken. Courts in construing statutes which grant the power, and authorize the taking of a certain estate or interest, enforce the rule of strict construction, permitting no greater title or interest to vest than has been expressly authorized or may be necessary to the contemplated public use. When an easement will be sufficient, no intendment or rule of liberal construction will be indulged to support an attempt to obtain any greater interest or estate .
Neitzel v. Spokane Int'l Ry. , 65 Wash. 100 , 105, 117 P. 864 (1911) (emphasis added). We have also stated the rule as follows:
"Inasmuch as property cannot constitutionally be taken by eminent domain except for the public use, it follows that no more property shall be taken than the public use requires; and this rule applies both to the amount of property and the estate or interest in such property to be acquired by the public. If an easement will satisfy the requirements of the public, to take the fee would be unjust to the owner, who is entitled to retain whatever the public needs do not require, and to the public, which should not be obliged to pay more than it needs ."
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City of Seattle v. Faussett , 123 Wash. 613 , 618, 212 P. 1085 (1923) (emphasis added) (quoting 10 Ruling Case Law 88). Accord State v. Larson , 54 Wn.2d 86 , 89, 338 P.2d 135 (1959) ("no greater estate or interest should be taken than is reasonably necessary to accomplish the public use or necessity."); State ex rel. Eastvold v. Superior Court , 48 Wn.2d 417 , 294 P.2d 418 (1956).
¶88 The above case law is unequivocally clear: if a government entity seeks to condemn more property than is needed, the excess property is not for a public use and may not be lawfully condemned. This rule is so well engrained that we have called it a "universal rule." City of Tacoma v. Humble Oil & Ref. Co. , 57 Wn.2d 257 , 356 P.2d 586 (1960).
¶89 Unfortunately, the majority disregards this "universal rule" of our eminent domain jurisprudence. The majority correctly states that a legislature's grant of eminent domain power to a municipality is to be strictly construed but immediately backpedals to avoid construing that authority so strictly as to actually restrict the agency. Majority at 622. The majority cannot show that following our "universal rule" here, by allowing Monorail to condemn only the property interests necessary to accomplish its purposes (a fee in the station footprint and, at most, construction easement in the remainder), would "defeat the purpose of the legislative grant." The contrary conclusion is further supported by the fact that other monorail station sites do not require an entire block for "staging and staff and labor parking."
¶90 More importantly, however, the majority would destroy our "universal rule" by stating that "decisions as to the amount of property to be condemned are legislative questions, reviewed under the legislative standard for necessity."«33»Majority at 633. It finally concludes that declarations of necessity by a condemning agency are conclusive
«33»Remarkably, the majority does this after attempting to distinguish Convention Center , 136 Wn.2d 811 . As previously quoted, Convention Center held the correct test for inquiries into public use: "[T]his court must ensure that the entire parcel subject to the eminent domain proceedings will be employed by the public use. The relevant inquiry is whether the government seeks to condemn any more property than would be necessary to accomplish purely the public component of the project." Convention Ctr. , 136 Wn.2d at 822 . The majority attempts to distinguish Convention Center by observing that it dealt with alleged permanent public use within the footprint of the project. The majority cannot explain, however, why these observations change our "universal rule" that determining whether excess property has been condemned is analyzed under a constitutionally mandated inquiry into public use, and not the deferential judicial construct of necessity.
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absent fraud or arbitrary and capricious conduct. This is abdication of the court's constitutional duty.
¶91 If, as the majority suggests, decisions as to the extent of property to be condemned fall under necessity, and judicial review is properly characterized by deference, there are no effective means by which the courts may carry out the constitutionally mandated independent inquiry into public use. If the majority seeks to overrule our "universal rule," it should do so explicitly.
¶92 Moreover, precedential support for the majority's conclusion is lacking. Specifically, the majority's reliance on Humble Oil and In re Petition of Port of Grays Harbor , 30 Wn. App. 855 , 638 P.2d 633 (1982), for the proposition that decisions as to the amount of property to be condemned as legislative questions, reviewed under the deferential standard are misplaced. Nor are these cases controlling as the majority suggests.
¶93 In Humble Oil , 57 Wn.2d at 257 , the city of Tacoma developed a hydroelectric project on the Cowlitz River in order to meet the city's electricity needs. Because the reservoir behind the dam would inundate the condemnee's land, the city sought to condemn a fee interest in the portion to be inundated. Although the condemnee stipulated that the hydroelectric project was a public use, he argued that he should be able to retain the mineral rights under the inundated land. In contrast, the city argued for a fee simple on the grounds that without a fee it could not "operate and control the reservoir satisfactorily," including concerns over pollution, subsidence, loss of fish life, among others. Id. at 259. The court granted an order of public use and necessity. The reason that the court determined that it
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would not interfere with the "selection" of land was precisely because doing so would interfere with the very purpose of the project, by creating pollution, etc. The same cannot be said for the instant case.
¶94 The majority also relies on Port of Grays Harbor . Not only is Port of Grays Harbor a Court of Appeals case that is not binding on this court, the case doesn't even purport to construe article I, section 16 of our state constitution. Rather, it interprets article VIII, section 8, which is a separate broad constitutional grant of condemnation authority only to port districts. That grant is so broad that the condemnation of property for industrial development and trade, normally understood as private uses, is often argued to be public use when part of a port development.
¶95 Because Humble Oil and Port of Grays Harbor offer insufficient support for their proposition, the majority relies on case law from various other states to support its claim that the condemning authority's decision as to the extent of the property interest is a legislative question. Majority at 631-32. It appears that the majority is not interested in our Washington Constitution but would rather cite to cases from other states that support its conclusion, even though those states have different constitutional provisions.
¶96 Because Washington Constitution article I, section 16 is clearly unique, we have previously refused to apply case law from other states to interpret it. See Westlake , 96 Wn.2d at 627 (rejecting the use of cases from other jurisdictions to interpret article I, section 16 because such cases "are not helpful"). The plain language of our constitution was chosen by our settler forefathers to provide one of the strongest mandates against the taking of private property for private use in the nation.
The judicial determination clause in the Washington Constitution is a clause currently existing in only four other states.«34»At the time of the 1889 Washington Convention, only Colorado
«34»ARIZ. CONST . art. II, § 17 ("Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.").
COLO. CONST . art. II, § 15 ("[W]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public."). See also Pub. Serv. Co. of Colo. v. City of Loveland , 79 Colo. 216, 245 P. 493 (1926).
MISS. CONST . art. III, § 17 ("[W]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.").
MO. CONST . art. I, § 28 ("[W]hen an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.").
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and Missouri had similar provisions. It is not entirely clear why such a provision was included in Washington's only constitutional restriction on the sovereign's otherwise limitless eminent domain power. . . . The only motion relative to this provision in the convention was an attempt to strike out any reference to the legislature. It failed. However, the clear language of the provision, with its difference from most other constitutions and early cases, shows that the constitutional framers sought to place a limit on the legislature by assigning the judiciary the duty to determine the character of proposed public uses.
James M. Dolliver, Condemnation, Credit, and Corporations in Washington: 100 Years of Judicial Decisions - Have the Framers' Views Been Followed? , 12 U. PUGET SOUND L. REV . 163, 175-76 (1989) (footnotes omitted).
¶97 The majority cites Reichling v. Covington Lumber Co. , 57 Wash. 225 , 106 P. 777 (1910) for the proposition that an immediate public use, even if only temporary, justifies the condemnation of a fee. However, in Reichling , the property had already been condemned years prior to the action, and the real issue was whether collateral attack on the condemnation was proper. In Reichling , as in all other cases addressing this matter, the use intended was not inherently temporary and at least had the potential to be of indefinite duration. Here, construction use is clearly, and admittedly, temporary.
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¶98 Finally, the majority also reasons that Monorail was entitled to take a fee in the remainder property because it determined that it would be less expensive to do so. However, the amount that property costs does not determine whether it is a public use. Cf. Westlake , 96 Wn.2d at 627 ("A beneficial use is not necessarily a public use."). Moreover, no actual cost figures were given, and this opinion was lay testimony - neither qualified nor admitted as expert opinion.
¶99 Our "universal rule" states that when a government agency seeks to condemn more property than required for legitimate public purpose, the excess is not for a public use. Here, not only does Monorail have an "associated development" policy that encourages excess condemnation for subsequent resale for private use at a profit, but the agency has made such condemnation a "priority" for the Sinking Ship parcel. Monorail's sole justification for condemning a fee in this portion of the parcel is the inherently temporary use of construction staging and staff and labor parking. The real purpose is to profit from the later sale.«35»
¶100 The majority cannot point to a single case approving the condemnation of a fee interest for an inherently temporary use where the condemning agency has a policy of condemning excess property for subsequent resale for private use. The proposition is most reminiscent of Westlake, in which this court disapproved such a condemnation proposal.
¶101 I would hold that under article I, section 16, anything beyond a fee simple in the footprint of the monorail station is not a public use. The constitution of our forefathers and Kubota's legacy requires this conclusion. The order of public use and necessity should be reversed on this basis alone.
«35»Providing Monorail staff free parking in Pioneer Square is unlikely to be a public use.
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D. Necessity for this public use
¶102 Even assuming that Monorail had proved a public use in the entirety of the parcel, it still cannot prove necessity. The majority's analysis regarding necessity is as flawed as its public use analysis.
¶103 Unlike the inquiry into "public use," which is a constitutionaly mandated inquiry, the inquiry into necessity is a corollary judicial construct. As stated by the majority, several determinations of necessity have been upheld absent actual fraud. Majority at 629. Yet, the majority fails to note other grounds upon which we overturn findings of necessity. Besides fraud, a declaration of necessity is not upheld where there is arbitrary or capricious conduct, manifest abuse of discretion, violation of law, improper motives, or collusion. Stojack , 53 Wn.2d 55 , 330 P.2d 567. Here, I would hold that the record establishes that Monorail's action is arbitrary and capricious and based upon improper motives.
¶104 Arbitrary and capricious conduct is defined as " ' "willful and unreasoning [action] and taken without regard to the attending facts or circumstances." ' " Wash. Indep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n , 149 Wn.2d 17 , 26, 65 P.3d 319 (2003) (quoting Rios v. Dep't of Labor & Indus. , 145 Wn.2d 483 , 501, 39 P.3d 961 (2002) (quoting Hillis v. Dep't of Ecology , 131 Wn.2d 373 , 383, 932 P.2d 139 (1997))). Monorail has unquestionably engaged in arbitrary and capricious conduct as evidenced by the fact that it seeks to condemn the Sinking Ship property before it has even finalized plans for the station and where the agency has admitted that the station footprint will use only one-quarter to one-third of the parcel. See supra note 24.
¶105 In Port of Everett v. Everett Improvement Co. , 124 Wash. 486 , 214 P. 1064 (1923), the newly formed Port of Everett sought to condemn property to carry out its purposes but had not formed any definitive plans for property to be condemned. The enabling statute of the port stated that it could condemn only property "necessary for the purposes of the port district." The court reasoned that:
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where the grant is of power to acquire only necessary property, there must be a showing that the particular property sought to be acquired is thus necessary, and without some definite stated plan of improvement, this necessity cannot be shown. So here, since there is no such definite plan, it is impossible for the court or anyone to know whether all or what particular part of the property here sought to be condemned is necessary for the use of the port district, and the right of condemnation must fail for this reason .
Everett Improvement , 124 Wash. at 494 (emphasis added).
¶106 Here, Monorail argued that there "is no requirement that a condemning authority must have a final design demonstrating use of the entire site before a condemnation can proceed forward." Br. of Resp't at 37. Monorail's argument is answered by Everett Improvement.
¶107 Like Everett Improvement , the monorail enabling legislation authorizes the agency to condemn only that property which is "necessary or appropriate for [its] facilities." RCW 35.95A.050 (1). Monorail repeated numerous times at the public use hearing that it had no definitive plans for the entirety of the Sinking Ship parcel except for the inherently temporary purpose of construction.«36»
¶108 By allowing premature condemnation of the remainder property, the majority implicitly approves the practice of an agency maintaining plans as vague as possible in the hopes of acquiring excess property to generate additional revenue. The lack of a definitive plan alone is fatal to the attempted condemnation and should be held arbitrary and capricious.
¶109 I would also find that Monorail's policies for associated development (by private parties), combined with the
«36» See, e.g., RP at 22 ("We haven't done any planning."); RP at 23 ("There has been no determination at all in our minds at this point. . . . There are no plans for development on this site."); RP at 77 ("I think the way I would word that is that we are trying to leave our options open . . . ."); RP at 78 ("We have no intention at this time of doing anything with the property specific. . . . One of the possibilities could be access, one could be a park, one could possibly be selling off residuals sometime in the future."); RP at 122 ("At the moment no uses appear to me if there is a remainder, what our use of that would be").
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agency's insistence on a fee interest even in the absence of a definitive plan, show improper motives. Monorail intended to infringe the constitutional rights of the property owner here to take property which would appreciate and then be resold by the agency in order to help finance its troubled project. This is not a proper motive since the enabling legislation specified the authorized funding sources and did not authorize Monorail to finance its project through real estate speculation (nor could it constitutionally).
¶110 The court has, until today, upheld a "universal rule," which states that if a government agency seeks to condemn more private property than required for its public purposes, the excess is not for a public use. Under our constitution, "[w]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public." CONST . art. I, § 16.
¶111 By upholding Monorail's decision to take far more property than it needs from a lawful private owner, and by erroneously applying a deferential standard to the agency's grab of this property, the majority overrules this court's "universal rule" sub silentio. I would uphold our constitution and agree with the property owner that Monorail (and other agencies of its ilk) should be restrained from abusing private property rights. As demonstrated by Kubota and his legacy, such rights are of exceptional import to our citizens. I believe the authors of our constitution understood this vital principle and drafted and overwhelmingly approved article I, section 16 to protect against such abuse. I dissent.
SANDERS, J., concurs with J.M. JOHNSON, J. No. 77300-9. En Banc.]
Argued August 24, 2005. Decided October 26, 2005.
In the Matter of the Recall of JAMES E. WEST , Mayor of the City of Spokane , Appellant .
 Elections - Recall - Petition - Court Review - Scope - Veracity of Charges. The role of the courts in the recall process is highly limited. It is not for the courts to decide whether the facts alleged in a recall petition are true or not true. It is the voters, not the courts, who will ultimately act as the fact finders. The courts function merely as gatekeepers to ensure that the recall process is not used to harass public officials by subjecting them to frivolous or unsubstantiated charges.
 Elections - Recall - Petition - Court Review - Scope - Sufficiency of Charges. Court review of a recall petition is limited to determining whether the charges are legally and factually sufficient.
 Elections - Recall - Petition - Court Review - Supreme Court. A superior court's ruling that the charges in a recall petition are legally and factually sufficient is reviewed by the Supreme Court de novo.
 Elections - Recall - Statutory Provisions - Construction - In Favor of Voters. The recall statute (RCW 29A.56.110 -.270) is construed in favor of the voter.
 Elections - Recall - Petition - Sufficiency - Statutory Requirements - Technical Violation - Effect. A charge in a recall petition will not be rejected on the basis of a mere technical violation of the recall statute (RCW 29A.56.110 -.270) so long as the charge, when read as a whole, provides enough information for the elected official to respond to the charge and for the voters to evaluate the charge; i.e., notwithstanding the petitioner's duty to plead with specificity, a court generally will not strike a recall petition on merely technical grounds.
 Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Evidence Considered - Supporting Documenta- tion. In determining the factual sufficiency of a recall petition, a court may consider supplemental documentation submitted by the petitioner.
 Elections - Recall - Ballot Synopsis - Revision by Superior Court - Matters Considered - Supplemental Materials Filed by Petitioner. Under RCW 29A.56.140 , a superior court may revise or provide greater detail to the ballot synopsis for a recall petition with details contained in supplemental documentation supplied by the petitioner if it deems the submitted ballot synopsis to be inadequate.
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 Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Misfeasance. A charge in a recall petition is factually sufficient if, when read as a whole, it states sufficient facts to identify to the electors and to the official who is the subject of the petition the acts or failure to act that, without justification, would constitute a prima facie showing of misfeasance. Voters may draw reasonable inferences from the facts. The fact that conclusions have been drawn by the petitioner is not fatal to the factual sufficiency of the allegations.
 Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Insufficiency - Cure - Supplemental Documenta- tion. In the sound discretion of the superior court, an alleged factual insufficiency in a recall petition may be cured by consideration of supplemental documentation submitted by the petitioner so long as the official who is the subject of the petition has sufficient actual notice to meaningfully respond to the factual allegations supported by the proffered supplementation. The petitioner has a duty to "reasonably identify" the relevant facts contained in the supplemental materials. The petitioner risks dismissal of the petition if the superior court cannot readily ascertain the factual basis of the charge.
 Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Offer of Assistance in Hiring To Curry Sexual Relationship. An allegation in a recall petition that an elected official offered an individual the assistance of the official's public office to obtain employment as an intern so as to promote a potential sexual relationship with the individual is factually sufficient to raise an inference that the official committed wrongful conduct affecting the performance of official duties or the performance of a duty in an improper manner.
 Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Misfeasance. A charge in a recall petition is legally sufficient if it specifically alleges substantial conduct clearly amounting to misfeasance.
 Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Offer of Assistance in Hiring To Curry Sexual Relationship. An allegation in a recall petition that an elected official offered an individual the assistance of the official's public office to obtain employment as an intern so as to promote a potential sexual relationship with the individual is legally sufficient to conclude that the official committed wrongful conduct affecting the performance of official duties or the performance of a duty in an improper manner. Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Amendment of Charge Using Supplemental Documentation - Effect. A charge in a recall petition is legally sufficient even though it has been amended by a superior court to be
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more effectively stated using information from supplemental documentation submitted by the petitioner if the gist of the original charge is sufficiently similar to the amended charge and the original petition, when read as a whole, gave fair notice of the actual charge.
MADSEN and J.M. JOHNSON , JJ., ALEXANDER , C.J., and FAIRHURST , J., concur by separate opinions; SANDERS , J., dissents by separate opinion.
Nature of Action: Action to determine the sufficiency of a charge in a recall petition.
Superior Court: The Superior Court for Spokane County, No. 05-2-02562-4, Robert D. Austin, J., on June 15, 2005, entered a judgment that the charge was legally and factually sufficient. The court also corrected the synopsis for the recall ballot to include specific details based on documentation either attached to the original petition or subsequently submitted by the proponent of the recall.
Supreme Court: Holding that the charge is legally and factually sufficient and that the trial court properly considered subsequently submitted materials in correcting the ballot synopsis, the court affirms the judgment.
William F. Etter and Susan W. Troppmann (of Etter, McMahon Lamberson & Clary, P.C. ), for appellant.
Carl J. Oreskovich , for appellant.
Jerry J. Davis , for respondent.
Robert B. Binger , for respondent.
Breean L. Beggs on behalf of Neighborhood Alliance of Spokane County, amicus curiae.
Mark D. Hodgson , amicus curiae.
Brant Stevens , amicus curiae.
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¶1 CHAMBERS, J. - On August 24, 2005, we entered a brief order affirming the superior court decision authorizing a recall effort to proceed against Spokane Mayor James E. West. We now take this opportunity to explain our conclusion.
¶2 Shannon Sullivan, pro se, filed a recall petition against Mayor West. Fairly read, she charged, among other things, that Mayor West committed recallable misfeasance by offering an opportunity to obtain an internship with his office as part of an effort to pursue a sexual relationship with a young person he met while on-line in an internet chat room. After a contested hearing, the Spokane County Superior Court found this charge to be factually and legally sufficient. The judge also corrected the ballot synopsis to include specific details supported by documentation either attached to the original petition or subsequently submitted by Sullivan.
¶3 We hold that the trial judge acted within his authority when he corrected the ballot synopsis and that the allegations are factually and legally sufficient. Therefore, we affirm.
[1, 2]¶4 First, we note that the role of courts in the recall process is highly limited, and it is not for us to decide whether the alleged facts are true or not. It is the voters, not the courts, who will ultimately act as the fact finders. RCW 29A.56.140 ; In re Recall of Kast , 144 Wn.2d 807 , 813, 31 P.3d 677 (2001). We merely function as a gatekeeper to ensure that the recall process is not used to harass public officials by subjecting them to frivolous or unsubstantiated charges. Id. Accordingly, our role is limited to ensuring that only legally and factually sufficient charges go to the voters. Id.
¶5 In briefest terms, and read broadly in favor of the petitioner, the surviving charge alleges that Mayor West had committed misfeasance by effectively offering to use his
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influence to assist a young person in applying for an internship with the mayor's office for his own personal benefit, i.e., to encourage a potential sexual relationship. Clerk's Papers (CP) at 89; Verbatim Report of Proceedings (VRP) at 44-46.«1»After considering the petition, documentation filed with the petition or submitted to the court separately, the ballot synopsis prepared by the Spokane County prosecutor's office, and argument from both sides, the judge found this charge factually and legally sufficient to go to the voters. VRP at 45. Additionally, the judge considered supplemental materials and used them to enrich the ballot synopsis with factually specific detail. VRP at 20-22; CP at 89. Mayor West sought review.
[3-6]¶6 Most elected officials in this state may be recalled for malfeasance, misfeasance, or violation of the oath of office. CONST . art. I, §§ 33-34; RCW 29A.56.110 . A superior court makes the initial determination of whether the charges are sufficient, which we review de novo. See RCW 29A- .56.140; Kast , 144 Wn.2d at 813 . Recall statutes are construed in favor of the voter. Id. at 814 (citing Skidmore v. Fuller , 59 Wn.2d 818 , 823-24, 370 P.2d 975 (1962)). Techni- cal violations of the governing statutes are not fatal, so long as the charges, read as a whole, give the elected official enough information to respond to the charges and the voters enough information to evaluate them. Id. Notwithstanding the petitioner's duty to plead with specificity, we will not strike recall efforts on merely technical grounds. Id. Accordingly, we may consider supporting documentation to determine whether the charges are factually sufficient. See, e.g., id.
«1»Additionally, the petition alleged that Mayor West should be recalled for improper use of city computers and hurting the reputation of the city. Sullivan has not challenged the trial judge's dismissal of these charges.
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1. CHALLENGE TO THE CORRECTION OF BALLOT SYNOPSIS
¶7 First, we must decide whether the trial judge committed reversible error by correcting the ballot synopsis with details supplied by Sullivan in supplemental materials. We conclude the trial judge did not overstep his authority.
¶8 The original ballot synopsis prepared by the prosecutor's office largely mirrored the charge as stated by Sullivan. Essentially, both charged that Mayor West had "committed acts of misfeasance in that: He solicited internships . . . for his own personal uses." CP at 19; cf. CP at 6 (original petition).
¶9 The trial judge provided greater detail to the charges. As amended, it now reads:
Between March 8, 2005 and April 9, 2005, Mayor James E. West used his elected office for personal benefit. On March 21, 2005, he authored a letter intending to help obtain a student internship with the City of Spokane for a person he believed to be an 18-year-old high school student. During a series of internet conversations, before and after the letter, Mayor West sent a photograph of himself to the person, raised issues of sex, discussed dating, and urged the person to keep Mayor West's identity a secret. Mayor West admits these conversations. Offering to help obtain a student internship with the City of Spokane under these circumstances was an improper exercise of an official duty.
CP at 89. Mayor West asserts that the trial judge exceeded his authority by correcting the ballot synopsis in this way.
¶10 But the legislature has vested the responsibility for this decision in the superior court. RCW 29A.56.140 ("The superior court shall correct any ballot synopsis it deems inadequate. Any decision regarding the ballot synopsis by the superior court is final."). The trial judge deemed the ballot synopsis inadequate because it failed to identify dates and other pertinent details and corrected the ballot synopsis to include this information. Fairly read, all the trial judge did was flesh out the factual details amply
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supported by supplemental materials. This fits comfortably within the common understanding of "correct," "to make or set right: remove the faults or errors from: amend." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 511 (1993).«2»
¶11 We hold the trial judge acted within his authority by correcting the synopsis as he did.
2. FACTUAL SUFFICIENCY
¶12 We now turn to whether the charge was factually sufficient. We hold that it was.
¶13 Charges are factually sufficient to justify recall when, "taken as a whole they . . . state sufficient facts to identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance." Chandler v. Otto , 103 Wn.2d 268 , 274, 693 P.2d 71 (1984). Voters may draw reasonable inference from the facts; the fact that conclusions have been drawn by the petitioner is not fatal to the sufficiency of the allegations. Id.
¶14 We first consider Mayor West's contention that the charges are insufficient because they lack sufficient detail. We find that the petition as a whole, as aptly demonstrated by the corrected synopsis, "describe[s] the charges 'with sufficient precision and detail to enable the electorate and the challenged official to make informed decisions in the recall process.' " In re Recall of Zufelt , 112 Wn.2d 906 , 911, 774 P.2d 1223 (1989) (quoting Jenkins v. Stables , 110 Wn.2d 305 , 307, 751 P.2d 1187 (1988)).
¶15 Mayor West next argues that the court erred by going beyond the "face" of the petition and considering attached documents. However, this court has already decided that attached documents may be considered and Mayor West gives us no reason to revisit this practice. See,
«2»We recognize that there may be some trial court revisions to charges that, rightly understood, are not "corrections" as meant by the statute. This case gives us no occasion to consider the question, as the changes do not change the "gist" of the charge. Cf. In re Recall of Lee , 122 Wn.2d 613 , 618, 859 P.2d 1244 (1993).
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e.g., Kast , 144 Wn.2d at 814 . We now hold that an alleged factual insufficiency in a recall petition may be, in the judge's sound discretion, cured by consideration of supplemental documentation, so long as the elected official has sufficient actual notice to meaningfully respond to the factual allegations supported by the proffered supplementation. See Kast , 144 Wn.2d at 814 ; In re Recall of Anderson , 131 Wn.2d 92 , 95, 929 P.2d 410 (1997) ("the court . . . may go outside the petition to determine whether there is a factual basis for the charge."). However, we caution that petitioners have the duty to "reasonably identify" the relevant facts contained in the supplemental materials and risk dismissal if courts cannot readily ascertain the factual basis of the charge.
¶16 Mayor West also argues that Sullivan does not have adequate knowledge of the facts necessary to support recall. See RCW 29A.56.110 . Mayor West analogizes the unnamed sources in the submitted newspaper articles to the unknown sources found to be inadequate in In re Recall of Beasley , 128 Wn.2d 419 , 428, 908 P.2d 878 (1996). But Beasley is not on point. In Beasley , the petitioner was "unsure" of the source of his allegation. In this case, the factual basis for the allegations is drawn almost entirely from transcripts of internet chats published in the newspapers. Sullivan and the community are aware of the source of the allegations and far better able to judge their credibility.«3»
¶17 We conclude the charge is factually sufficient. Read broadly, as a whole, and in favor of the voter, we find it alleges that an elected official offered the assistance of his office in obtaining an internship to promote a potential
«3»Much of the factual basis for this claim appears in newspaper articles. Nothing in this opinion should be taken to establish that media articles, categorically, may form a sufficient basis for the personal knowledge of facts required by law. See RCW 29A.56.110 ; cf. Zufelt , 112 Wn.2d at 908 . However, here, the news articles included lengthy transcripts of electronic conversations that form the basis of the charge. Additionally, we note that after a contested hearing, the trial judge essentially concluded that Mayor West had admitted the conversations, a finding Mayor West has not challenged before us, though he does challenge the transcript's completeness and the implications to be drawn from those conversations. CP at 89 ("Mayor West admits these conversations.").
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sexual relationship. CP at 74-76, 89. This is factually sufficient to raise an inference that Mayor West committed "wrongful conduct that affects . . . the performance of official duty [or] the performance of a duty in an improper manner." RCW 29A.56.110 (1)(a); cf. BLACK'S LAW DICTIONARY 1021 (8th ed. 2004) (defining "misfeasance" as, "A lawful act performed in a wrongful manner.").
3. LEGAL SUFFICIENCY
[11, 12]¶18 To be legally sufficient under these circumstances, the charge must specifically allege substantial conduct clearly amounting to misfeasance. Kast , 144 Wn.2d at 815 .
¶19 Mayor West argues, among other things, that the charge is not legally sufficient because sending an e-mail to a person interested in an internship is not conduct that affects or interferes with the performance of his official duties. But this is an overly narrow articulation of the charge brought in the petition. The charge raises the inference that Mayor West sought to capitalize on his elected office and influence in order to pursue a sexual relationship with a young person. This is clearly "wrongful conduct that affects . . . the performance of official duty [or] the performance of a duty in an improper manner." RCW 29A.56.110 (1)(a).
¶20 We are not unmindful of the fact that the original petition did not specifically articulate this charge in this way and that recourse to the attached documentation was required. However, we find that this will not defeat an otherwise adequate charge if the "gist" of the original charge is sufficiently similar to the charge as stated in the amended ballot synopsis. In re Recall of Lee , 122 Wn.2d 613 , 618, 859 P.2d 1244 (1993). The petition read as a whole gave fair notice of the actual charges, and Sullivan unequivocally adopted the trial court's articulation of the
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charge at oral argument before us. We find that the charge is legally sufficient.«4»
¶21 This court will not allow merely technical violations of the statutes to block a factually and legally sufficient recall petition from going to the voters. Because the errors claimed by Mayor West are, at most, only technical, we affirm.
ALEXANDER, C.J., and C. JOHNSON, BRIDGE, OWENS, and FAIRHURST, JJ., concur.
¶22 MADSEN, J. (concurring) - I agree with the majority that the trial court was entitled to consider the supplemental material presented by Ms. Sullivan at the hearing, along with the petition and its attachments. I also agree with the majority's result. In my view, "the acts stated in the charge satisfy the criteria for which a recall petition may be filed." RCW 29A.56.140 . I write separately to make clear that the petition and the supplemental documents must allege a charge that is factually and legally sufficient in order to permit a recall petition to go forward. Although the trial court has the authority to "correct" the ballot synopsis to adequately reflect the charge, regardless of whether the "correction" pertains to factual or legal matters, the court cannot "correct" the charge by correcting the ballot synopsis. Thus, if the charge meets the statutory requirements then the trial court has the authority to ensure that the ballot synopsis correctly sets forth the allegations that support the recall charge. If, conversely, the charge is legally and/or factually insufficient then the recall petition
«4»Mayor West argues that although the trial court has the authority to correct the factual adequacy of the synopsis, it did not have the authority to correct any legal insufficiency in the petition through correcting the ballot synopsis. Since we find that the charge was legally sufficient, we need not reach this issue. We also deny both Mayor West's RAP 9.11 motion to supplement on the grounds that the materials are not helpful to our consideration and Sullivan's RAP 18.9 motion for sanctions for filing the formal motion to accept the supplementation in an untimely manner.
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must be dismissed and no "correction" by the trial court to the ballot synopsis can save it.
ALEXANDER, C.J., and FAIRHURST, J., concur with MADSEN, J.
¶23 J.M. JOHNSON, J. (concurring) - Constitutional rights do not submit to red tape. Accordingly, I join the opinion of the court but write separately to underscore the nature and importance of the constitutional right to recall under article I, section 33 of the Washington Constitution. The adjacent constitutional provision authorizes statutes only to "facilitate its operation." CONST . art. I, § 34. Thus, any laws affecting recall must be construed by courts to assure the free exercise of this right. That is the (belated) result here,«5»so I concur.
¶24 The right to recall finds its source in the sovereignty of the people, first expressed at the beginning of our constitution in article I, acknowledging the source of all political power:
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
CONST . art. I, § 1. The foregoing section states, "the fundamental premise as to the source of political power in Washington." Wash. State Farm Bureau Fed'n v. Reed , 154 Wn.2d 668 , 684-85, 115 P.3d 301 (2005) (J.M. Johnson, J., dissenting). It therefore serves as the lens through which we view all other article I rights. This necessarily includes the express provision of a right to recall elected officials which was ratified in 1912. The Eighth Amendment, now article I, section 33, in pertinent part provides:
Every elective public officer of the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a
«5»I strongly agreed with the procedure followed in this court, entering an order allowing the recall immediately the day of argument to minimize delay.
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petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof . . . .
(Alteration in original.) The right of recall is an additional remedy provided by the people to further control public officers they have elected. Gibson v. Campbell , 136 Wash. 467 , 479, 241 P. 21 (1925) (Holcomb, J., dissenting). It serves as a safeguard against abuse of power by elected officials, further ensuring their accountability to the people.
¶25 As an article I right in the Declaration of Rights of our state's constitution, the right to recall is an individual right on par with the right to petition and assemble ( section 4) and freedom of speech ( section 5) of the same article I. It is well established that none of these other article I rights are subject to prior restraint by government or by government officials, and this same protection must be given the right to recall.«6»
¶26 In my view, this means that prior restraints upon the exercise of the right to recall are presumptively unconstitutional. Since statutes of the legislature relating to recall are constitutionally allowed only to "facilitate its operation," such statutes cannot be construed to prohibit or
«6»In the speech context, we have noted that prior restraints are official restrictions that prohibit future speech. State v. Bassett , 128 Wn.2d 612 , 615, 911 P.2d 385 (1996); City of Seattle v. Bittner , 81 Wn.2d 747 , 756, 505 P.2d 126 (1973). Prior restraints are presumptively unconstitutional. Bassett , 128 Wn.2d at 615 ; Soundgarden v. Eikenberry , 123 Wn.2d 750 , 765, 871 P.2d 1050 (1994). However, not all prior restraints are prohibited. Id. (citing State v. Coe , 101 Wn.2d 364 , 372-73, 679 P.2d 353 (1984)). E.g., a regulation may not rise to the level of a prior restraint if it is merely a valid time, place, or manner restriction on the exercise of protected speech. Ino Ino, Inc. v. City of Bellevue , 132 Wn.2d 103 , 126, 937 P.2d 154 (1997); Coe , 101 Wn.2d at 373 .
It is also worth emphasizing that rights of the people guaranteed through other articles of our constitution should be protected from prior restraints. See, e.g. , Wash. State Farm Bureau Fed'n , 154 Wn.2d at 684 (J.M. Johnson, J., dissenting) (maintaining that the secretary of state and the legislature may not act in prior restraint of the right of referendum).
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impede exercise of this right.«7»Delay - even in the courts - could work such an impediment.
¶27 As article I, section 34 provides, in pertinent part:
The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay . . . .
Any legislation at cross-purposes with the facilitation of the right would be constitutionally void. The corollary is that a court should construe and implement any statutory scheme to avoid this effect.
¶28 In this respect, section 34's provision requiring legislation to "facilitate" the right to recall is similar to article II's provision requiring legislation to "facilitate" the respective rights of initiative and referendum. The article II provision was included through the Seventh Amendment, which established these rights of initiative and referendum. In the initiative context we have noted that "[t]he principle that statutes are to be construed to 'facilitate,' rather than frustrate, the right of initiative derives from the plain language of the Washington Constitution." Coppernoll v. Reed , 155 Wn.2d 290 , 297 n.4, 119 P.3d 318 (2005).
¶29 Although article II, section 1(d) describes the section as "self-executing," it shares article I, section 34's use of the limiting term "facilitate." It is also important that the right to recall was adopted by the people at the same election in 1912. Accordingly, the exercise of that right demands as much respect as the rights of initiative and referendum, being "nearly as old as our constitution itself, deeply engrained in our state's history, and widely revered as a powerful check and balance on the other branches of government." Coppernoll , 155 Wn.2d 290 .
«7»That the people contemplated the legislature enacting legislation to ensure the facilitation of this right is obvious, as discussed supra . However, such legislation cannot prohibit future exercise of the right and any statutory provisions relating to recall that would purportedly be analogous to time, place, or manner restrictions should be carefully scrutinized in order that the people's right may be maintained and protected.
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¶30 From this understanding that legislation may be passed only to "facilitate" the exercise of the right to recall, it follows that "the judiciary must exercise restraint in interfering with the elective process which is reserved to the people in the state constitution." McCormick v. Okanogan County , 90 Wn.2d 71 , 75, 578 P.2d 1303 (1978). Such restraint involves recognition that the charges raised in the recall statement do not require the particularity of criminal charges or a criminal indictment. The question of whether sufficient cause exists for removal involves a political proceeding, with the question to be ultimately decided by the people. "The same exactitude, or any approach thereto, is never required in non-judicial that is generally required in judicial procedure." Gibson , 136 Wash. at 479 (Holcomb, J., dissenting). "[A]s against the people, a public officer, their servant, has no rights whatever, so far as his possession of the office is concerned, which may not be ignored by the people speaking in a lawful manner." Cudihee v. Phelps , 76 Wash. 314 , 330, 136 P. 367 (1913). In the exercise of the right of recall, "there is not involved any question of due process of law guaranteed by the state or Federal constitution cognizable by the courts." Id. at 331. Accordingly, "[a] person need not be guilty or even probably guilty of any penal offense to be amenable to recall under this political method of recall." Gibson , 136 Wash. at 479 (Holcomb, J., dissenting).«8»
¶31 It also follows that, as with initiative or referendum statutes, interpretation of statutes preserving the people's right to recall must be liberally construed. See Gibson , 136 Wash. at 474-75 ("in carrying out the salutary purposes intended in the adoption of the recall, the provisions of the
«8»Further, because "the recall was adopted by the people of the state for the express purpose of allowing them to remove their officials at will, and for any cause which was by them deemed sufficient," the ascertainment of the particular motives of any recall petition's proponents is beyond proper judicial inquiry. Gibson , 136 Wash. at 474. Rather, the existence or legitimacy of any such motives are themselves triable to the people, and "[c]ourts would be treading upon dangerous ground if they should assume to make the exercise by the citizens of rights granted by the constitution and laws dependent upon considerations of motive." Roberts v. Milliken , 200 Wash. 60 , 68, 93 P.2d 393 (1939).
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statute should be liberally construed."); In re Estate of Thompson , 103 Wn.2d 292 , 294-95, 692 P.2d 807 (1984) (noting this court has consistently applied the rule that provisions preserving the right of initiative to the people will be liberally construed to facilitate that right). "Recall statutes are construed in favor of the voter." Majority at 663 (citing In re Recall of Kast , 144 Wn.2d 807 , 814, 31 P.3d 677 (2001)). Only by remembering the underlying purpose of recall statutes in facilitating the exercise of that right will the judiciary be able to vigilantly safeguard this important right of the people.
¶32 Accordingly, I concur in today's opinion upholding this recall, while reminding courts in the future their role should be limited and quickly concluded - i.e., exercised with clear understanding that the constitutional right of recall is only to be facilitated.
¶33 SANDERS, J. (dissenting) - Spokane Mayor James West demonstrates the recall charge filed by Shannon Sullivan is legally and factually insufficient. In this State, and under our laws and constitution, public office holders have the right to conduct their private affairs in a lawful manner without fear of recall. But our majority misconstrues the statute governing recall elections, ignores controlling precedent, and embellishes the evidence offered by Ms. Sullivan. I therefore disagree with both the majority's approach and its conclusions and would protect the mayor's right to a private life.
A. Washington Recall Provisions
¶34 Citizens of Washington have a constitutional right to remove elected public officials prior to the expiration of their terms through a recall election. WASH. CONST . art. I, §§ 33-34. But unlike constitutional recall provisions in most
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other states,«9»ours requires specific cause be shown before recall is allowed. Chandler v. Otto , 103 Wn.2d 268 , 270, 693 P.2d 71 (1984). We are also in the minority of states constitutionally requiring a recall petition to allege acts of malfeasance, misfeasance, or a violation of the oath of office. Id .
¶35 Concerned with recall elections based on charges void of factual support and other abuses of the process, the legislature amended the recall statute in 1976 to require the charge " 'giv[e] a detailed description including the approximate date, location, and nature of each act complained of.' " Id . at 272 (emphasis omitted) (quoting former RCW 29.82.010 (1965)); see also RCW 29A.56.110 . The recall statute was amended again in 1984 to require a petitioner to verify under oath knowledge of the facts on which the recall charge is based. Id . at 272; see also RCW 29A.56.110 . The 1984 amendments also defined misfeasance as " 'any wrongful conduct that affects, interrupts, or interferes with the performance of official duty' " or " 'the performance of a duty in an improper manner.' " Id. at 272 (quoting LAWS OF 1984, ch. 170, § 1); see also RCW 29A.56.110 (1).
¶36 These modifications indicate legislative intent to protect officials from petitions based on "frivolous charges or mere insinuations" and require a recall petition to satisfy both legal and factual sufficiency requirements. Chandler , 103 Wn.2d at 274 . Further, by restricting the definition of misfeasance to wrongful conduct affecting the duties of the officer, RCW 29A.56.110 precludes recall charges based on private conduct unrelated to those duties.
B. The Sullivan Petition
¶37 The petition filed by Ms. Sullivan alleged in the relevant part:
«9» See CAL. CONST . art. II, §§ 13-19; COLO. CONST . art. XXI, §§ 1-4; IDAHO CONST . art. VI, § 6; LA. CONST . art. X, § 26; MICH. CONST . art. II, § 8; NEV. CONST . art. II, § 9; N.J. CONST . art. I, ¶ 2; N.D. CONST . art. III, §§ 1-10; OR. CONST . art. II, § 18; WIS. CONST . art. XIII, § 12.
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By Mayor West's own admission, on 11/30/04, 12/31/04, 02/19/05, 2/26/05, 3/8/05, 3/9/05, 3/19/05, and 3/29/05 he abused his computer privileges on a City owned computer to interact with young men on a gay web site. He also admitted soliciting internships for young men for his own personal uses.
Mayor West has been under the spot light on inappropriate behavior for quite a few years. He is hurting the reputation of our fine city. I plead with the courts to allow me to start a petition to remove Mayor Jim West from his post. I have attached several documents stating more allegations.
Clerk's Papers (CP) at 6.
¶38 The petition included three attachments: (1) a copy of the Oath of Office signed by the Mayor on December 23, 2003; (2) a four-paragraph excerpt, ostensibly from a Spokane Spokesman-Review article; and (3) a Spokane Spokesman-Review article dated May 5, 2005. CP at 8-15. At the sufficiency hearing, Ms. Sullivan submitted an additional seven unsworn documents into the record.«10»
¶39 The question before us is whether the charge alleging Mayor West solicited internships for young men "for his own personal uses" satisfies the factual and legal sufficiency requirements.
II. THE CHARGE IS FACTUALLY INSUFFICIENT
¶40 The factual sufficiency requirement serves to "ensure that charges, 'although adequate on their face, do not constitute grounds for recall unless supported by identifiable facts.' " In re Recall of Wade , 115 Wn.2d 544 , 549, 799 P.2d 1179 (1990) (quoting Teaford v. Howard , 104 Wn.2d 580 , 584, 707 P.2d 1327 (1985)). Factual sufficiency means
«10»(1) City of Spokane Personnel Policy, Electronic Communications, HR-52; (2) City of Spokane Personnel Policy, Email, HR-55; (3) a Spokane Spokesman-Review article by Mike Prager dated May 9, 2005, along with an affidavit signed by Cherie Rodgers; (4) an e-mail and AOL instant messaging exchange between Mayor West and Moto-Brock obtained by the Spokane Spokesman-Review ; (5) an e-mail from Mayor West to Moto-Brock dated March 21, 2005; (6) a Spokane Spokesman-Review article by Bill Morlin dated May 5, 2005; and (7) an e-mail exchange between Mayor West and Brock Stewart obtained by the Spokane Spokesman-Review , dated March 8, 2005 through March 21, 2005. CP at 58-84. "Moto-Brock" was an alias used by a forensic computer expert hired by the Spokane Spokesman-Review to verify Mayor West's on-line presence. CP at 81.
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the facts included in the charge must establish a prima facie case of misfeasance, malfeasance, or violation of the oath of office (quantitative prong). Cole v. Webster , 103 Wn.2d 280 , 285, 692 P.2d 799 (1984). The facts must be stated in "concise language," and "give a detailed description including the approximate date, location, and nature of each act complained of" (qualitative prong). RCW 29A- .56.110.
¶41 On its face, the charge Mayor West "admitted soliciting internships for young men for his own personal uses" is insufficient. CP at 6. It provides no description of the nature or method of the alleged solicitation and fails to identify its recipients. Id . The alleged "soliciting internships for young men for his own personal uses" is vague, ambiguous, grammatically incorrect, and void of factual specificity required by RCW 29A.56.110 .
¶42 The next question is whether Ms. Sullivan may rely on the attachments to her petition. As a general proposition, the answer is yes. See , e.g. , In re Recall of Kast , 144 Wn.2d 807 , 814, 31 P.3d 677 (2001). However, subsequent to Kast , we have clarified the extent of that prerogative in In re Recall of Wasson , 149 Wn.2d 787 , 72 P.3d 170 (2003).
¶43 Much like this case, Wasson involved a petitioner who sought to support his petition with attachments containing a significant amount of irrelevant information. Holding such attempts violated the specificity (qualitative) prong of factual sufficiency, we stated a petitioner choosing to refer to attached information must "reasonably identify" the relevant facts in the supplemental materials and that "[a] general reference to sources containing relevant and irrelevant information is insufficient." Wasson , 149 Wn.2d at 792 .
¶44 Wasson is controlling precedent the majority chooses to ignore. Regarding the attachments, the petition simply states, "I have attached several documents stating more allegations." CP at 6. If this constitutes "reasonable identification" of the relevant facts contained in the attachments, then what doesn't?
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¶45 Even if we dispense with the qualitative prong of analysis, and consider the attachments, the charge still fails the factual sufficiency test.
¶46 The majority wants us to draw an inference that the invitation to apply for an internship was made to "promote a potential sexual relationship." Majority at 666. We cannot draw such an inference. The only concrete piece of evidence Ms. Sullivan has submitted is the March 21, 2005, e-mail inviting Moto-Brock to apply for an internship.«11»Nor do the remaining attachments which mention the internship establish any connection between the invitation to apply and sex. Nothing in the attachments links Mayor West's private affairs with the discharge of his duties. Nor does the record state the mayor has the authority to select interns at all. When the majority states the mayor offered "an opportunity to obtain an internship with his office as part of an effort to pursue a sexual relationship" it is not referencing the record but rather its own wild speculation. Majority at 662.
¶47 Because the facts alleged in the petition, even when considered alongside those alleged in the attachments, do not constitute a prima facie case of misfeasance, the charge is factually insufficient.
III. THE CHARGE IS LEGALLY INSUFFICIENT
¶48 In order to be legally sufficient, "the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office." Chandler , 103 Wn.2d at 274 . This case involves a single allegation of misfeasance. The statute defines mis
«11»The e-mail stated:
A friend of mine has asked if I would consider you for an internship in the Mayor's office. He informs me that you are a high school senior at Ferris high school in Spokane. He also says that you are an excellent student and a member of the football team.
If you are interested please contact Melissa Murphy in my office at 625-6250. She will have you fill out an application which will need your parent's and school official's approval. We look forward to hearing from you.
CP at 78.
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feasance as "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty" or "the performance of a duty in an improper manner." RCW 29A.56.110 (1)(a). To present a prima facie case of misfeasance, the petition must "allege [the elected official's] abuse of discretion" or "identify a standard, law or rule which would make his conduct wrongful, improper or unlawful." In re Recall of Zufelt , 112 Wn.2d 906 , 914, 774 P.2d 1223 (1989).
¶49 Because the charge and the attachments do not identify any standard, law or rule allegedly violated by Mayor West, the legal sufficiency of the charge must be based on abuse of discretion.«12» Id .
¶50 Without citing to the record, the majority asserts that the charge "raises the inference" Mayor West used his office to pursue a sexual relationship with a young person. Majority at 667. As discussed above, this allegation does not appear in the charge or the attachments. There is no evidence the social interactions between the Mayor and the Spokesman-Review expert took place during business hours, involved city computers, or otherwise affected Mayor West's official duties. The charge provides none of the specifics required by RCW 29A.56.110 and fails to "provide a concise statement of the legal violations and a detailed description of the acts to inform the electorate and the official being charged." Wasson , 149 Wn.2d at 792 .
¶51 Because the charge and the attachments do not identify any standard, law, or rule violated by Mayor West and because they do not state with specificity substantial conduct amounting to abuse of discretion, the charge is legally insufficient.
¶52 The majority attempts to circumvent this deficiency by arguing Ms. Sullivan "adopted" the amended ballot synopsis prepared by the trial court at oral argument. No
«12»Mayor West's use of his office e-mail account to invite a student to apply for an internship with his office does not violate either of the city of Spokane's policies attached by Ms. Sullivan because the e-mail did not concern personal relationships, dating, or sex. See CP at 58-67.
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explanations or citations are provided to illuminate the significance of this alleged adoption. To the extent the majority argues factual and legal sufficiency infirmities in the charge and the accompanying attachments can be rectified by the ballot synopsis, such determination is unsupported by the statute.
¶53 The charge suffers from both technical and substantive infirmities. No evidence has been presented from which to infer Mayor West committed acts of misfeasance as defined by RCW 29A.56.110 . The majority's analysis is high on innuendo and generalization and short on substantive discussion of the actual contents of the charge and the attachments. I would reverse the trial court and hold the charge is factually and legally insufficient.«13»
¶54 Accordingly, I dissent.
«13»I agree with the majority's resolution of Mayor West's challenge to the trial court's power to correct the ballot synopsis. The plain language of RCW 29A.56.140 precludes review of the trial court in this regard. I also agree with the majority denying both Mayor West's RAP 9.11 motion and Ms. Sullivan's motion for sanctions.