[No. 75605-8. En Banc.]
Argued June 30, 2005. Decided February 9, 2006.
THE STATE OF WASHINGTON , Respondent , v. STONEY DAYE SHAFER , Appellant .
[1] Statutes - Validity - Presumption - Burden of Proof - Degree of Proof. A party challenging the constitutional validity of a statute has the burden of overcoming the presumption of validity by proving that the statute is unconstitutional beyond a reasonable doubt.
[2] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Effect. Whether an out-of-court statement made by an unavailable declarant may be admitted in a criminal trial without violating the defendant's Sixth Amendment right to confront an adverse witness depends on whether the statement is testimonial or nontestimonial in nature. A testimonial statement made by an unavailable declarant is not admissible at trial unless the defendant had a prior opportunity to cross-examine the declarant. The cross-examination requirement does not automatically apply if the statement is nontestimonial in nature.
[3] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial Statement - Examples. A testimonial statement implicating the Sixth Amendment confrontation right is one generally having some degree of involvement by a government official, whether acting as a police officer, as a justice of the peace, or as an instrument of the court. At a minimum, the term "testimonial statement" encompasses testimony made at a preliminary hearing, before a grand jury, or at a former trial, and to statements given to a police officer in the course of an interrogation. Casual remarks made to family, friends, and nongovernmental agents generally are not testimonial statements because they are not made in contemplation of bearing formal witness against an accused.
[4] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Statement By Child to Parent. An unsolicited statement made by a child to the child's parent about a bad act perpetrated on the child by another and statements subsequently made by the child in response to the parent's follow-up queries are not, without more, testimonial statements implicating the Sixth Amendment confrontation right because they are not made in contemplation of bearing formal witness against the accused.
382 State v. Shafer Feb. 2006
156 Wn.2d 381
[5] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Statement By Child to Person With Law Enforcement Connections - Not Acting for Law Enforcement Agency. A statement made by a child to a person with law enforcement connections about a bad act perpetrated on the child by another is not a testimonial statement implicating the Sixth Amendment confrontation right if the person, at the time of talking to the child, is not acting for any law enforcement agency and the child, or no reasonable child in the declarant child's position, has reason to expect that the statements will later be used at trial.
[6] Sexual Offenses - Evidence - Statement of Child Victim - Hearsay - Nontestimonial Statement - Admissibility - Test. A child's nontestimonial hearsay statements describing an act of sexual contact or physical abuse are admissible against a criminal defendant if there is compliance with RCW 9A.44.120 and the statements are reliable as determined by application of the nine Ryan factors ( State v. Ryan , 103 Wn.2d 165 (1984)).
[7] Criminal Law - Evidence - Suppression - Findings of Fact - Failure To Assign Error - Effect. A trial court's unchallenged findings of fact entered following an evidence suppression hearing are verities on appeal.
[8] Sexual Offenses - Evidence - Statement of Child Victim - Validity - State Constitution Confrontation Right. RCW 9A.44.120, which authorizes the admission of hearsay testimony of a child's out-of-court statements describing an act of sexual contact or physical abuse, comports with the general approach utilized to test hearsay against confrontation guaranties and is, therefore, constitutional under Const. art. I, § 22, which guarantees to criminal defendants the right "to meet the witnesses against him face to face."
CHAMBERS and J.M. JOHNSON , JJ., concur by separate opinion; SANDERS , J., dissents by separate opinion.
Nature of Action: Prosecution for first degree rape of a child.
Superior Court: The Superior Court for Pierce County, No. 03-1-04449-2, Bryan E. Chushcoff, J., on June 11, 2004, entered a judgment on a verdict of guilty.
Supreme Court: Holding that statements made by the child victim to her mother and to another person were nontestimonial in nature and that their admission did not violate the defendant's constitutional right to confront adverse witnesses, the court affirms the judgment.
Feb. 2006 State v. Shafer 383
156 Wn.2d 381
Lenell R. Nussbaum , for appellant.
Gerald A. Horne , Prosecuting Attorney, and Kathleen Proctor , John M. Neeb , and Donna Y. Masumoto , Deputies, for respondent.
¶1 ALEXANDER, C.J. - Stoney Shafer was convicted of rape of a child in the first degree. At trial, certain statements that the alleged child victim made to her mother and another person were admitted pursuant to RCW 9A.44.120 , notwithstanding the fact that the victim did not testify at the trial and Shafer had no prior opportunity to cross-examine the child. Shafer appeals, claiming that RCW 9A.44.120 facially or as applied, runs afoul of the constitutions of the United States and the state of Washington. We hold that the statements were properly admitted and affirm the trial court.
I
¶2 On September 20, 2003, three-year-old T.C. spent a few hours at the home of her aunt, Dionne Alston. Stoney Shafer, Alston's boyfriend, was present at Alston's home during T.C.'s visit to her aunt's home. At approximately 11:35 P.M . that night, T.C.'s mother retrieved T.C. from Alston's house and returned home with the child. T.C. was asleep when her mother collected her, and she slept until the next morning.
¶3 Shortly after T.C. awoke, she told her mother that "Uncle touched my privates."«1»Verbatim Report of Proceedings (May 5, 2004) at 312. T.C.'s mother then telephoned
«1»According to T.C.'s mother, T.C. used the term "Uncle" to refer to Shafer and the term "privates" in reference to her vaginal area.
384 State v. Shafer Feb. 2006
156 Wn.2d 381
Dionne Alston and attempted to determine whether Shafer had spent any time alone with T.C. After this conversation, T.C.'s mother asked T.C. if she wanted to talk further. T.C. responded by telling her mother "that Uncle had touched her privates like this (gesturing)«2»and that Uncle licked her privates like this (indicating)."«3» Id . at 317. She also indicated that "Uncle had told her to kiss his privates like a sucker and that he made a mess on the bed with his pee-pee." Id . T.C.'s mother went on to describe their conversation:
After [T.C.] had got done telling me that, I just asked her "Uncle who?" to make sure that she was talking about who I thought she was talking about, and she said "Junior's dad."«4»And then I asked her where my sister was at. "Where was Auntie Dionne at?" She said "Auntie Dionne was in the yard," I believe, I think she said.
Id . T.C.'s mother indicated that T.C. had no previous exposure to sexually explicit material.
¶4 Following her conversation with T.C., T.C.'s mother took the child to a hospital for an examination. Washington State Patrol lab technicians later examined the swabs taken from T.C.'s vagina and mouth during the examination. They also examined clothing that the child was wearing at the time of the alleged sexual contact. Although the oral and vaginal swabs did not, according to the technicians, turn up any relevant evidence, semen was detected on the cuff of T.C.'s sleeve. Shafer was then arrested.
¶5 Approximately a week after Shafer's arrest, T.C. was at the home of Victoria Doroshenko, a family friend. Doroshenko had a history of acting as a confidential infor
«2»T.C.'s mother testified that the child's gesture was to "put her index finger up and made . . . kind of a circular motion with her finger." Id . at 318.
«3»T.C.'s mother described the child's indication as "sticking her tongue in and out of her mouth." Id .
«4»Shafer and Alston are the parents of Stoney Daye Shafer, Jr., also known as "Junior."
Feb. 2006 State v. Shafer 385
156 Wn.2d 381
mant for law enforcement agencies. She was also aware that Shafer had been arrested for allegedly raping T.C. While there, T.C. talked to Doroshenko's daughter, Haley, about her encounter with Shafer. Haley relayed the information that she obtained from T.C. to Doroshenko. Doroshenko described the events that then took place:
After Haley told me this, I brought [T.C.] over and asked what they were talking about, and [T.C.] told me boys have pee-pees and girls have privates. And I said, "Well, what about them?" and she made a comment to it being "like a sucker," and, you know, making the gesture with her little cheek.
. . . .
. . . . And she said, "But it tasted bad," or - - she said "But it tasted bad." "Yuck." Like that. And I said "Oh really?" and she said - - she said "Yeah, and then stuff shooted [sic] out of it." And I said, "Really? Well, then what happened?" and she said "Then it fall down."
Id . at 390.
¶6 Doroshenko then videotaped another interview with T.C. The record reveals that although Doroshenko had acted as a confidential informant for law enforcement organizations, she was not, at this time, acting for any law enforcement agency.
¶7 The Pierce County prosecuting attorney charged Shafer with one count of rape of a child in the first degree. Prior to trial, the trial court conducted a competency hearing and concluded, based on the stipulation of the parties, that T.C. was not competent to testify. The trial court also concluded that because of her incompetence, T.C. was unavailable to testify.
¶8 Shafer moved to exclude T.C.'s hearsay statements, claiming that RCW 9A.44.120 , the child hearsay statute, was unconstitutional in light of the United States Supreme Court's ruling in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The trial court denied the motion, ruling that the holding in Crawford applied to testimonial statements only and that to the extent that the
386 State v. Shafer Feb. 2006
156 Wn.2d 381
statute permits the introduction of nontestimonial statements, it remained constitutional. It held that T.C.'s statements to her mother and Doroshenko were nontestimonial.
¶9 The trial court thereafter applied the so called " Ryan factors" to determine if T.C.'s statements were reliable for purposes of RCW 9A.44.120 . See State v. Ryan , 103 Wn.2d 165 , 175-76, 691 P.2d 197 (1984). Specifically, it found that:
[1] There is no apparent motive for T.C. to lie; [2] T.C. appears to be a "normal" child, one who does not have a negative character or any tendency to lie; [3] T.C. made statements about this incident to [her mother] and Ms. Doroshenko at different times, with similar content; [4] T.C.'s statements were spontaneous as defined by case law, in that she made the statements in her own words even when she was responding to a question; [5] T.C.'s statements to [her mother] were made the morning after the incident, and her statements to M[s]. Doroshenko were made within a week or so of the incident, so T.C. was still able to accurately recall what happened; [6] n/a; [7] n/a; [8] the possibility of T.C.'s recollection being faulty is remote because of the timing of those statements in relation to the incident; and [9] the overall circumstances surrounding the statements T.C. made to [her mother] and Ms. Doroshenko demonstrate reliability, especially considered in conjunction with the hand and mouth movements T.C. made and accepting the State's offer of proof that a semen stain was found on her shirt sleeve.
Clerk's Papers at 63. The trial court also found that T.C.'s hand and mouth gestures and the semen found on her shirt were "sufficient corroboration for the admission of T.C.'s statements" to her mother and Doroshenko. Id . Therefore, it concluded that T.C.'s statements to her mother and Doroshenko, with the exception of the videotaped questioning, were admissible.
¶10 At trial, Shafer stipulated that sperm was present on T.C.'s shirt and that it was his sperm. A jury found Shafer guilty. Shafer then petitioned this court for direct review and we granted his petition. Shafer has not assailed any of the trial court's findings of fact.
Feb. 2006 State v. Shafer 387
156 Wn.2d 381
II
¶11 1. Whether RCW 9A.44.120 , as applied in this case, is violative of the United States Constitution as interpreted by the United States Supreme Court in Crawford v. Washington .
¶12 2. Whether article I, section 22 of the Washington Constitution provides a greater right of confrontation than the sixth amendment to the United States Constitution and, if so, whether RCW 9A.44.120 violates that constitutional provision.
III
[1]¶13 A statute is presumed to be constitutional. State v. Ward , 123 Wn.2d 488 , 496, 869 P.2d 1062 (1994) (citing Diversified Inv. P'ship v. Dep't of Soc. & Health Servs. , 113 Wn.2d 19 , 23, 775 P.2d 947 (1989); State v. Brayman , 110 Wn.2d 183 , 193, 751 P.2d 294 (1988)). The party challenging it, therefore, has the burden to prove it is unconstitutional beyond a reasonable doubt. Id .
A
¶14 Shafer contends that RCW 9A.44.120 , as applied to him, is unconstitutional because it permitted the admission of T.C.'s hearsay statements by utilizing the "indicia of reliability" standard set forth in Ohio v. Roberts , 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), a standard, he argues, that was rejected in Crawford .
¶15 The confrontation clause of the Sixth Amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST . amend. VI. In 1980, the United States Supreme Court ruled that the admission of hearsay statements would not violate the confrontation right of the accused so long as the witness is unavailable and his or her statements bear adequate indicia of reliability. Roberts , 448 U.S. at 66. The Washington State Legislature enacted
388 State v. Shafer Feb. 2006
156 Wn.2d 381
RCW 9A.44.120 «5»in response to Roberts . See LAWS OF 1982, ch. 129, § 2.
[2]¶16 In 2004, the United States Supreme Court reexamined its decision in Roberts and departed from it, holding that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford , 541 U.S. at 68 (emphasis added). It indicated further, however, that where nontestimonial statements are at issue, "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law - as does Roberts , and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Id . Thus, it follows that not all hearsay implicates the confrontation clause. Indeed, we so concluded in State v. Davis , 154 Wn.2d 291 , 111 P.3d 844 (2005), a case in which we examined statements made during a 911 call in which a victim identified the defendant as her assailant. We said there that those statements were nontestimonial and, consequently, did not implicate Crawford . Id . at 305 ¶ 38.
[3]¶17 We must, therefore, determine here if T.C.'s statements to her mother and Doroshenko were "testimonial." As we observed in Davis , the United States Supreme Court did not pronounce a comprehensive definition of testimonial in Crawford. Id. at 299 ¶ 18. It did indicate, however, that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the
«5»RCW 9A.44.120 conditions the admission of hearsay statements made by children under the age of 10 describing any act of sexual contact performed with or on them by another on the following:
"(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
"(2) The child either:
"(a) Testifies at the proceedings; or
"(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act."
Feb. 2006 State v. Shafer 389
156 Wn.2d 381
modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Crawford , 541 U.S. at 68.«6»Of the testimonial statements identified s such in Crawford , the common thread binding them together was some degree of involvement by a government official, whether that person was acting as a police officer, as a justice of the peace, or as an instrument of the court. Accord id. at 53. The Court in Crawford went on to say that casual remarks made to family, friends, and nongovernment agents are generally not testimonial statements because they were not made in contemplation of bearing formal witness against the accused. Id. at 51; accord Davis , 154 Wn.2d at 304 .«7»
[4]¶18 In light of the Supreme Court's formulations of what is or is not "testimonial," we first examine the statements T.C. made to her mother. These statements were not solicited by T.C.'s mother. Without prompting, T.C. told her mother about her encounter with Shafer, and she did so upon awaking from sleep. T.C.'s mother then responded in a manner that one would expect of a concerned parent under the circumstances - she inquired further. While
«6»The concurring opinion correctly observes that what is or is not testimonial in light of Crawford will present a challenging determination for this State's trial court judges. This is due in part to the United States Supreme Court's decision to not provide a precise definition of testimonial statements. The Supreme Court did, however, articulate three formulations of the core class of testimonial statements. These are: " '[(1)] ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, [(2)] 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [and (3)] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " Crawford , 541 U.S. at 51-52 (citations omitted). We find ourselves agreeing with the late Chief Justice William H. Rehnquist that what constitutes a testimonial statement is presently somewhat amorphous. Id. at 75-76 (Rehnquist, C.J., concurring). We are satisfied, however, that T.C.'s statements do not fall within any one of the Supreme Court's three core class formulations.
«7»In Crawford, the Supreme Court identified several types of statements it considered nontestimonial, such as: (1) off-hand, overheard remarks, (2) casual remarks made to an acquaintance, (3) business records or statements in furtherance of a conspiracy, (4) dying declarations, and (5) statements made unwittingly to a government informant. Crawford , 541 U.S. at 51, 56, 57.
390 State v. Shafer Feb. 2006
156 Wn.2d 381
T.C.'s statements in response to her mother's questioning were not entirely spontaneous, they were not the result of leading questions or a structured interrogation. Furthermore, the police were not involved, and T.C. had no reason to expect that her statements would be used at a trial.«8»For these reasons, we conclude that T.C.'s statements to her mother were nontestimonial and, thus, do not run afoul of Crawford .
[5]¶19 It is a closer question whether the statements T.C. made to Doroshenko were testimonial. On the one hand, Doroshenko had prior experience as an informant for law enforcement agencies, and her contact with T.C. occurred approximately a week after Shafer was arrested. On the other hand, Doroshenko was not acting for any law enforcement agency at the time she talked to T.C., and, again, T.C. had no reason to expect that her statements would later be used in court. Furthermore, the most questionable aspect of Doroshenko's contact with T.C., the videotaped interview of the child, was excluded from evidence by the trial court. On balance, we are of the view that
«8»The dissenting opinion states that we are using a subjective person, rather than an objective person, test to determine whether the declarant, T.C., reasonably believed the challenged statements would be used later to prosecute. Dissent at 398-99. The proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made. See Commonwealth v. Gonsalves , 445 Mass. 1, 833 N.E.2d 549, 562 (2005) ("We see no reason why a reasonable person in the [20-year-old] complainant's position would anticipate that her statement, made in her own bedroom, to her mother . . . would be used [in] prosecuting the alleged assault."). Applying this standard, it defies logic to think that T.C., as a three-year-old child, or any reasonable three-year-old child, would have an expectation that her statements about alleged sexual abuse could be used for prosecutorial purposes. Thus, whether one looks to T.C.'s subjective appreciation of the legal ramifications of her statements, as the dissent incorrectly asserts we do, or whether one objectively looks to what a reasonable, competent person in T.C.'s position would understand to be the import of the statements, which is the proper determination, the outcome of this case would not change. A three-year-old child, whether T.C. or a fictional reasonable one, who tells her mother and a family friend in a private setting about sexual abuse is not making the statements in anticipation that the statements will later be used to prosecute the alleged sexual abuse perpetrator.
Feb. 2006 State v. Shafer 391
156 Wn.2d 381
T.C.'s nonvideotaped statements to Doroshenko were not testimonial.
[6, 7]¶20 In light of the foregoing, we conclude that, where nontestimonial hearsay statements of a child are at issue, the statements are admissible if there is compliance with RCW 9A.44.120 and the Ryan reliability factors. Because Shafer has not challenged any of the trial court's findings of fact in support of its conclusion that T.C. was unavailable and that her statements were reliable, the findings are considered verities on appeal. State v. Hill , 123 Wn.2d 641 , 644, 870 P.2d 313 (1994). Therefore, the admission of these nontestimonial statements does not violate the United States Constitution.
B
¶21 Shafer contends, additionally, that the confrontation clause contained in article I, section 22 of the Washington Constitution is to be interpreted more broadly than its federal counterpart in the Sixth Amendment and that RCW 9A.44.120 violates this broad interpretation.
¶22 Article I, section 22 of the Washington Constitution provides, in pertinent part: "In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face." In State v. Foster , 135 Wn.2d 441 , 957 P.2d 712 (1998), we addressed the issue of whether a statute that allowed a child witness to testify via one-way closed circuit television ran afoul of the " 'face to face' " language in article I, section 22. Id . at 444. Although our court was divided in Foster , a majority of the court concluded that article I, section 22 required an independent analysis and that the statute did not violate our state's constitutional provision. Id . at 470 (Guy, J., lead opinion); id. at 474 (Alexander, J., concurring and dissenting); id. at 481 (C. Johnson, J., dissenting).
[8]¶23 While Shafer correctly observes that an independent analysis of article I, section 22 is required, we need not engage in such analysis here. We say this because we
392 State v. Shafer Feb. 2006
156 Wn.2d 381
have previously concluded that RCW 9A.44.120 complies with article I, section 22. Ryan , 103 Wn.2d at 169 -70. In Ryan , we were asked to determine whether RCW 9A.44.120 violated the Sixth Amendment and article I, section 22. We held there that "[t]he requirements for admission under RCW 9A.44.120 comport with the general approach utilized to test hearsay against confrontation guaranties." Id. at 170. We adhere to that view now and hold that RCW 9A.44.120 is constitutional under article I, section 22.
IV
¶24 We conclude that RCW 9A.44.120 is constitutional to the extent it permits the admission of a child's nontestimonial statements. We also conclude that RCW 9A.44.120 was applied constitutionally in this case because the child's statements were nontestimonial. We, therefore, affirm the trial court.
C. JOHNSON, MADSEN, BRIDGE, OWENS, and FAIRHURST, JJ., concur.
¶25 CHAMBERS, J. (concurring) - The text of Washington's confrontation clause, article I, section 22, is strikingly different from its federal Sixth Amendment counterpart. Under our state constitution, the "accused shall have the right . . . to meet the witnesses against him face to face." CONST . art. I, § 22. By contrast, under the federal constitution, the accused enjoys the more limited right "to be confronted with the witnesses against him." U.S. CONST . amend. VI. It is my view that in the appropriate circumstances, our constitution may provide greater protection than the Sixth Amendment. But because I read the majority's result in this case to be consistent with my view, I concur.
¶26 As the majority correctly observes, a majority of the divided court in State v. Foster , 135 Wn.2d 441 , 957 P.2d 712 (1998), concluded that article I, section 22 of the Washington State Constitution requires independent
Feb. 2006 State v. Shafer 393
156 Wn.2d 381
analysis. Majority at 391. Indeed the markedly different text alone (only one of the Gunwall factors), perhaps the most important factor, strongly supports a conclusion that Washington's confrontation clause provides greater protections. State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986).
¶27 I am also reluctant to rely upon State v. Ryan, 103 Wn.2d 165 , 691 P.2d 197 (1984), for any independent interpretation of article I, section 22. Contra majority at 391. Ryan was decided before our decision in Gunwall . When interpreting article I, section 22, the Ryan court found the section to be synonymous - not different - from the Sixth Amendment. Ryan, 103 Wn.2d at 169 . I do not believe that, post- Gunwall, this is sustainable.
¶28 However, as the majority of this court in Foster observed, "face to face" and "confront" are consonant terms. My review of dictionaries and pertinent cases leads me to conclude that the phrases "meet the witnesses against him face to face" and "to be confronted with the witnesses against him" meant one and the same to our founders. See Foster, 135 Wn.2d at 459 (citing WILLIAM C. ANDERSON, A DICTIONARY OF LAW 226 (1889) (defining the word " 'confront' " as to " 'bring face to face' ") and (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 477, 811 (1986) (defining " 'confront' " to mean to " 'bring face to face' "; defining " 'face' " to mean to " 'confront' "))). Be that as it may, the passage of time and pen seems to have changed the interpretation of the terms used by the federal courts. Compare Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) with Crawford v. Washington, 541 U.S. 36, 63, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (overruling Roberts ). We should hew to the original understanding and jealously guard what the constitution promises.
¶29 I also agree with the majority today that the admission of the testimony of Victoria Doroshenko is a close question. Majority at 390. I part company with the majority in its heavy reliance on the fact that Doroshenko was not a law enforcement officer. The fact that a statement is given to a government official is only one factor to be considered
394 State v. Shafer Feb. 2006
156 Wn.2d 381
when determining whether evidence is "testimonial" for the purposes of the Sixth Amendment confrontation clause, albeit an important one. Crawford, 541 U. S. at 51-54.
¶30 Because I believe what is and is not testimonial under Crawford will be a thorny and difficult issue for trial judges, I offer my own observations. First, while Crawford declines to articulate a comprehensive definition of "testimonial," it did provide several examples of what the core class of testimonial statements might be, including:
[1] ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [2] extrajudicial statements . . . contained in formalized testimonial material, such as affidavit, depositions, prior testimony, or confessions; [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for the use at a later trial.
Id. at 51-52 (citations omitted) (internal quotations marks omitted).
¶31 The last category, statements made under circumstances that would lead an objective witness to believe the statements would be available for use later at trial, will be the most difficult. Obviously the Crawford court intended an "objective" test with respect to whether or not a statement would be available for use at trial at a later time. Objectively, I would conclude the statements made to Doroshenko were testimonial. While Doroshenko was not a law enforcement officer, she was also not merely a friend of the family. She testified that she had over 10 years' experience as a volunteer investigator and confidential informant for the Federal Bureau of Investigation, United States Secret Service, Sumner Police Department, Tacoma Police Department, and various drug and gang task forces. Doroshenko's first interview with T.C. took place approximately one week after Shafer had been arrested, and Doroshenko was aware that Shafer had been arrested and
Feb. 2006 State v. Shafer 395
156 Wn.2d 381
suspected of raping T.C. Doroshenko solicited statements from T.C. rather than T.C. making statements spontaneously. While the fact Doroshenko was a family friend tends to weigh in the opposite direction, in my view, an objective witness would understand from the totality of the circumstances that T.C.'s statements made to Doroshenko would be used at trial.
¶32 Second, we should apply an abuse of discretion standard to the admission or nonadmission of such statements, since whether or not they are testimonial is essen tially a factual determination. E.g., State v. Davis, 154 Wn.2d 291, 301, 111 P.3d 844, cert. granted, 126 S. Ct. 547 (2005). In short, the trial court would not abuse its discretion in either admitting or excluding Doroshenko's testimony.
¶33 Finally, regardless of whether or not the admission of Doroshenko's testimony was error, even confrontation clause violations should be subject to harmless error analysis. If the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt, there is no error. State v. Palomo , 113 Wn.2d 789 , 799, 783 P.2d 575 (1989). Here the properly admitted hearsay statements T.C. made to her mother describing the sexual contact she had with Shafer, the evidence of Shafer's semen found on T.C.'s clothing, and T.C.'s explicit mouth gestures constitute overwhelmingly untainted evidence of guilt. Therefore, I too would affirm Shafer's conviction and leave for another day when article I, section 22 provides greater protection than the Sixth Amendment.
J.M. JOHNSON, J., concurs with CHAMBERS, J.
¶34 SANDERS, J. (dissenting) - The confrontation clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. CONST . amend. VI.«9»As
«9»An analogous provision in the Washington Constitution guarantees a criminal defendant "the right . . . to meet the witnesses against him face to face . . . ." WASH. CONST . art. I, § 22. I agree with the concurrence that this provision may supplement the protections offered by the confrontation clause. However, because I believe that hearsay evidence of T.C. statements is inadmissible under the confrontation clause, I do not reach the question of whether certain nontestimonial statements admissible under the confrontation clause are inadmissible under the Washington Constitution.
396 State v. Shafer Feb. 2006
156 Wn.2d 381
a consequence, hearsay evidence of a testimonial statement is inadmissible in a criminal trial, unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington , 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The majority holds that T.C.'s allegations of sexual assault were nontestimonial statements and that admission of hearsay evidence of those allegations did not violate the confrontation clause. I disagree.
I. T.C.'S STATEMENTS WERE TESTIMONIAL BECAUSE A REASONABLE PERSON WOULD EXPECT THE STATE TO USE THEM IN AN INVESTIGATION OR PROSECUTION
¶35 Whether or not a particular statement is testimonial is indeed a fact-specific question courts must answer on a case-by-case basis. See State v. Davis , 154 Wn.2d 291 , 295, 111 P.3d 844, cert. granted , 126 S. Ct. 547 (2005). The police didn't solicit T.C.'s statements. And she certainly didn't have any expectations concerning their use. Majority at 389-90. Both are relevant facts. But neither is dispositive. The majority incorrectly assumes that the question at issue is whether the speaker knew the police would use the statement. In fact, it is whether a reasonable person would expect the police to use the statement. See Commonwealth v. Gonsalves , 445 Mass. 1, 833 N.E.2d 549, 557 (2005); United States v. Brito , 427 F.3d 53 (1st Cir. 2005). And whether or not T.C. expected the police to use her statements, a reasonable person certainly would.
A. Statements Made to Nongovernment Agents May Be Testimonial
¶36 Statements made to the police are indeed generally testimonial. Crawford specifies that the term testimonial "applies at a minimum " to statements made to government
Feb. 2006 State v. Shafer 397
156 Wn.2d 381
agents. Crawford , 541 U.S. at 68 (emphasis added). A statement "knowingly given in response to structured police questioning" is testimonial under "any conceivable definition." Id. at 53 n.4. See also Davis , 154 Wn.2d at 301 (finding testimonial 911 calls "generated by a desire to bear witness"); State v. Walker , 129 Wn. App. 258 , 261, 118 P.3d 935 (2005) (finding testimonial any statement "elicited in response to structured police questioning in the course of a police investigation").
¶37 But a statement made to a private individual may also be testimonial. In re E.H. , 355 Ill. App. 3d 564, 823 N.E.2d 1029, 1037, 291 Ill. Dec. 443 (holding "it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause"), appeal granted , 215 Ill. 2d 597, 833 N.E.2d 2, 295 Ill. Dec. 520 (2005). Cf . Bruton v. United States, 391 U.S. 123, 138, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (Stewart, J., concurring) ("[A]n out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused."); California v. Green, 399 U.S. 149, 179, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (Harlan, J., concurring) ("[T]he Confrontation Clause was meant to constitutionalize a barrier against . . . absentee witnesses."). " 'A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not.' " Richard D. Friedman & Bridget McCormack, Dial-In Testimony , 150 U. PA. L. REV . 1171, 1241 n.276 (2002) (quoting Richard D. Friedman, Confrontation: The Search for Basic Principles , 86 GEO. L. J . 1011, 1042-43 (1998)). See also Richard D. Friedman, Grappling with the Meaning of "Testimonial ," 71 BROOK. L. REV . 241, 260 (2005) ("If the declarant anticipates that the statement, or the information asserted in it, will be conveyed to the authorities and used in prosecution, then it is testimonial, whether it is made directly to the authorities or not."). Specifically, a "parent, teacher or doctor who suspects child abuse and questions the child for the purpose of confirming
398 State v. Shafer Feb. 2006
156 Wn.2d 381
her suspicions is in fact seeking 'testimonial' statements." ROBERT A. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON § 804.04 1[c], at 804-29 (2005). So T.C.'s statements to her mother may well be testimonial.
B. Crawford Requires an Objective Test
¶38 An interpretation of "testimonial" focusing on the intent of the declarant "is unduly narrow, does not fully comport with the thrust of Crawford , is inconsistent with the trend in other jurisdictions, and is more difficult to apply than the approach adopted in other jurisdictions." ARONSON , supra , § 804.04[1][c], at 804-23. Rather, a statement is testimonial if it provides "the functional equivalent of uncross-examined, in-court testimony." Davis , 154 Wn.2d at 301 . See also Friedman, Grappling with the Meaning of "Testimonial," supra , at 249 (suggesting statement testimonial if it "performs the function of testimony"). So, the appropriate inquiry is whether a statement serves the function of testimony. And a statement can function as testimony whether or not the speaker actually expects the State to use it. See In re E.H. , 823 N.E.2d at 1037 (holding "the declarant's state of mind is hardly a consideration when determining whether there has been a confrontation violation"). The actual intentions of the person who made the statement are irrelevant.
¶39 Thus, as I emphasized in Davis , the logic of Crawford demands "an objective evaluation of whether a reasonable person would know that his statements could be used to prosecute." Davis , 154 Wn.2d at 307 (Sanders, J., dissenting). See also Chris Hutton, Sir Walter Raleigh Revived: The Supreme Court Re-Vamps Two Decades of Confrontation Clause Precedent in Crawford v. Washington, 50 S.D. L. REV . 41, 71 (2005) (noting "the subjective standard has been overwhelmed by the objective standard"). Crawford didn't "spell out a comprehensive definition of 'testimonial,' " 541 U.S. at 68. But it did offer several helpful "formulations" of the "core class of 'testimonial' statements." Id. at 51. These include " 'pretrial statements
Feb. 2006 State v. Shafer 399
156 Wn.2d 381
that declarants would reasonably expect to be used prosecutorially' " and " 'statements that were made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial.' " Id . at 51-52 (emphasis added) (quoting briefs).
¶40 This language - reasonable, objective - inescapably implies that objective criteria distinguish testimonial and nontestimonial statements. "The proper inquiry is whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting a crime." Gonsalves , 833 N.E.2d at 558. See also Brito , 427 F.3d at 61 ("The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated . . . would have had the capacity to appreciate the legal ramifications of her statement."); Horton v. Allen , 370 F.3d 75, 84 (1st Cir. 2004) (finding statement nontestimonial because not made "under circumstances in which an objective person would 'reasonably believe that the statement would be available for use at a later trial' " (quoting Crawford , 541 U.S. at 51-52)); United States v. Cromer , 389 F.3d 662, 675 (6th Cir. 2004) (holding statement testimonial if "a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime"); People v. Cortes , 4 Misc. 3d 575, 594, 781 N.Y.S.2d 401 (2004) (holding statement testimonial if reasonable person would know it "is likely to be used in investigation or prosecution of a crime"); People v. Sisavath , 118 Cal. App. 4th 1396, 13 Cal. Rptr. 3d 753, 758 n.3 (2004) ("[I]f the statement was given under circumstances in which its use in a prosecution is reasonably foreseeable by an objective observer, then the statement is testimonial."). See also Friedman, Grappling with the Meaning of "Testimonial ," supra , at 4 (suggesting "statement is testimonial if it transmits information for use in litigation"). And a "reasonable person" expects the police to use an allegation of sexual assault.
400 State v. Shafer Feb. 2006
156 Wn.2d 381
¶41 Apparently, the majority is unfamiliar with the vagaries of the apocryphal "reasonable person." It actually concedes that a statement is testimonial if "a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime." Majority at 390 n.8. But inexplicably, it proceeds to premise its conclusions on the expectations of a "reasonable three-year-old child." Id. And of course, a "reasonable person" cannot have the subjective expectations of a three-year-old child. Certainly, the "circumstances" surrounding a statement are relevant. But they cannot include the competence of the speaker. An "objective" test that considers subjective characteristics is no objective test at all.
C. Under an Objective Test T.C.'s Statements were Clearly Testimonial
¶42 Essentially, the majority holds that the State can use hearsay evidence of T.C.'s statements as testimony because she cannot testify herself. But hearsay evidence of an out-of-court statement is simply a " 'weaker substitute for live testimony.' " State v. Rohrich , 132 Wn.2d 472 , 480, 939 P.2d 697 (1997) (quoting United States v. Inadi , 475 U.S. 387, 394, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986)). The confrontation clause prohibits the introduction of hearsay evidence of a child's out-of-court statement after the child testifies. Rohrich , 132 Wn.2d 472 . Perversely, the majority permits it when the child never testifies at all. T.C. said out-of-court exactly what the State would expect her to say on the stand. And if a statement is testimonial in court, it's testimonial at home, too. Cf . Friedman & McCormack, 150 U. PA. L. REV ., supra , at 1242 (suggesting "if any significant time has passed since the events it describes, the statement is probably testimonial").
¶43 Obviously, an incompetent child witness like T.C. can't herself form subjective expectations regarding the future use of her statements. But the "intent of the declarant" cannot determine whether a statement is testi
Feb. 2006 State v. Shafer 401
156 Wn.2d 381
monial because "the Confrontation Clause was intended to protect the defendant's right to cross-examine witnesses whose statements may lead to his conviction." Aronson, supra , § 804.04[1][c], at 804-24. So we must evaluate her statements from an objective perspective. They are testimonial if a reasonable, competent person in a similar position would expect the State to use them in investigating or prosecuting a crime. See Hutton, supra , at 70 (noting that in child witness cases, "courts focus on whether an objective witness would view the statements as designed for prosecutorial purposes"). Such a statement is objectively testimonial because the State could use it in place of testimony.
¶44 While a statement "generated by a desire to bear witness" is testimonial, a "call for help to be rescued from peril" is not. Davis , 154 Wn.2d at 301 . But how to distinguish one from another? The answer is elementary. "Any assertion, taken as the basis of an inference to the existence of the matter asserted, is testimony, whether made in court or not." 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 479, at 640 (James H. Chadbourn rev. ed., 1979), quoted in In re E.H. , 823 N.E.2d at 1036. Thus, a statement "offered to prove the truth of the matter asserted" is testimonial. In re E.H. , 823 N.E.2d at 1036. Cf . Dutton v. Evans , 400 U.S. 74, 88, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). And a statement "used to prove merely that the statement had been made" is not. Dutton , 400 U.S. at 88. But the State did not offer hearsay evidence of T.C.'s statements merely to prove she made them. It offered hearsay evidence of those statements as proof of what they asserted, intending them to implicate Shafer. Consequently, the statements were clearly testimonial.
¶45 Of course, some casual, incidental statements are nontestimonial. See Crawford , 541 U.S. at 51. A reasonable, competent person expects a statement to "be available for use at a later trial" only if there's reason to believe it concerns a criminal violation. And a seemingly innocuous statement may ultimately prove relevant to a criminal
402 State v. Shafer Feb. 2006
156 Wn.2d 381
charge. But an allegation of sexual assault is never "a casual remark to an acquaintance" or an "off-hand, overheard remark." Id . at 51. It simply beggars belief to suggest that a reasonable, competent person would not expect the police to use an allegation of sexual assault in investigating and prosecuting a crime.
¶46 A crime report is a testimonial statement, but an "excited utterance . . . 'made without reflection or deliberation' " is not. Davis , 154 Wn.2d at 301 (quoting People v. Corella , 122 Cal. App. 4th 461, 18 Cal. Rptr. 3d 770, 776 (2004)). But T.C. wasn't in danger when she made the statements to her mother and Doroshenko. She didn't make an "excited utterance." She reported an alleged crime as best she was able, by telling her mother it took place. See Friedman, Grappling with the Meaning of "Testimonial" , supra , at 21 (noting that "narrative statements by victims of completed crimes almost certainly are made with anticipation of prosecutorial use"). T.C. may not have understood the gravity of her statements. But a reasonable, competent person in her position certainly would. Her allegations of sexual assault were testimonial because a reasonable person would expect them to function as testimony. Therefore, the court should not have admitted hearsay evidence of them.
¶47 Consequently, I dissent. No. 76284-8. En Banc.]
Argued May 26, 2005. Decided February 16, 2006.
THE CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY , Respondent , v. KENNETH R. MILLER ET AL ., Appellants , NORTHWEST COMMUNITY BANK ET AL ., Defendants , PIERCE COUNTY , Respondent .
[1] Eminent Domain - Judicial Proceedings - Stages. After a state agency with the power of eminent domain makes an initial determination that condemnation of property is necessary for a public purpose, judicial proceedings thereon are undertaken in three stages: First, a decree of public use and necessity must issue. Second, just compensation must be determined. Third, just compensation must be paid and title transferred.
[2] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Deference to Legislature. Whether it is necessary for a jurisdiction or government agency to condemn property largely is a question for the legislative body of the jurisdiction or government agency. The legislative body's declaration of necessity is conclusive so long as (1) it is not the product of actual fraud and (2) it does not involve arbitrary and capricious conduct as would constitute constructive fraud.
[3] Eminent Domain - Public Use and Necessity - "Necessity" - What Constitutes - In General. In the condemnation context, "necessity" means reasonable necessity under the circumstances. It does not mean immediate, absolute, or indispensable need.
[4] Eminent Domain - Notice - Legislative Decision - Personal Notice to Condemnee - Necessity. A property owner does not have a statutory or due process right to personal notice of a public meeting at which a jurisdiction or government agency will be considering the initiation of eminent domain proceedings.
[5] Administrative Law - Notice - Sufficiency - Question of Law or Fact - Review - Standard of Review. The sufficiency of a government agency's notice of a proceeding is a question of law that is reviewed de novo.
[6] Administrative Law - Notice - Sufficiency - Burden of Proof. A party challenging the sufficiency of a government agency's notice of a proceeding has the burden or proving that the notice was defective.[7] Municipal Corporations - Transportation - Regional Transportation Authority - Eminent Domain - Notice - Statutory Requirements. Under RCW 81.112.080 (2), a regional transit authority must satisfy the requirements of RCW 35.22.288 for giving
404 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
notice of a public hearing or meeting at which eminent domain proceedings are to be considered.
[8] Administrative Law - Notice - Statutory Requirement - Purpose. The purpose of a statutory notice requirement is to apprise fairly and sufficiently those who may be affected of the nature and character of an action so they may intelligently prepare for the hearing.
[9] Municipal Corporations - Council - Meetings - Notice - First Class Cities - Statutory Procedures - Exclusivity. The RCW 35.22.288 requirement of a procedure for notifying the public of upcoming hearings or meetings and of the preliminary agenda therefor may be satisfied by any method or procedure that is comparable to the specifically listed methods or procedures.
[10] Municipal Corporations - Council - Meetings - Notice - First Class Cities - Statutory Procedures - Posting on Internet Web Site. The RCW 35.22.288 requirement of a procedure for notifying the public of upcoming hearings or meetings and of the preliminary agenda may be satisfied by an established procedure of posting meeting times and agendas on a public Internet web site.
[11] Municipal Corporations - Council - Meetings - Notice - Agenda - Specificity - Sufficiency. The meeting agenda notice requirement of RCW 35.22.288 is satisfied by notice that is descriptive enough to fairly apprise a reasonable person of what is to be discussed at the meeting. In general, a meeting notice will be deemed adequate absent a showing that it was misleading.
[12] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Standard of Review. When reasonable minds can differ, a legislative body's decision that it is necessary to condemn property for a public purpose will not be disturbed by a court so long as the decision was reached honestly, fairly, and upon due consideration of the facts and circumstances. Even if the necessity decision was partially motivated by improper considerations, it will not be vacated if there is a demonstrably genuine need for the condemnation and the condemning agency in fact intends to use the property for the avowed purpose.
[13] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Arbitrary and Capricious Conduct - What Constitutes. A government agency's proposed condemnation of property does not involve arbitrary and capricious conduct as would constitute constructive fraud if the agency acts honestly, with due deliberation, and within the scope and in furtherance of its statutory and constitutional functions.[14] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Findings of Fact - Appellate Review. Where a trial court has weighed the
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 405
156 Wn.2d 403
evidence and entered findings of fact in support of a decision to uphold a government agency's determination that it is necessary to condemn property for a public purpose, an appellate court will review the record to determine only whether the findings are supported by substantial evidence. Substantial evidence is evidence that would persuade a fair-minded, rational person of the truth of the finding. In applying the substantial evidence standard, the court views the evidence in the light most favorable to the respondent.
[15] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Arbitrary and Capricious Conduct - Presence of Dwelling House. It is not arbitrary and capricious for a government agency to select for condemnation a parcel of property where there exists a substantial dwelling house, even if vacant tracts are nearby.
[16] Eminent Domain - Public Use and Necessity - "Necessity" - Legislative Determination - Judicial Review - Environmental Impacts. When reviewing a government agency's determination that it is necessary to condemn property for a public purpose, it is not the court's role to take a second look at any environmental considerations that may be at issue. So long as the agency considered the environmental impacts in making the necessity determination, it is not for the court to substitute its judgment in the absence of some demonstration of fraud or arbitrary and capricious conduct.
[17] Eminent Domain - Public Use and Necessity - "Necessity" - What Constitutes - Alternative Site - Effect. A particular condemnation is necessary so long as it appropriately facilitates a public use; i.e., the necessity requirement for a condemnation is satisfied if there is a reasonable connection between the declared public use and the property. The condemnation need not be the best or only way to accomplish the public goal. The suitability of an alternative site does not negate the necessity determination or make the selection arbitrary and capricious.
ALEXANDER , C.J., and J.M. JOHNSON and SANDERS , JJ., dissent by separate opinions; CHAMBERS , J., concurs in the dissent by ALEXANDER , C.J., and concurs in the result only of the dissent by J.M. JOHNSON , J.Nature of Action: A regional transit agency sought to condemn property for a transit station. The property owners opposed the condemnation, claiming that the agency failed to adequately notify the community of the agenda of the agency meeting at which the decision to condemn the property was made. The property owners also challenged
406 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
the agency's determination that condemnation of the property was necessary.
Superior Court: The Superior Court for Pierce County, No. 04-2-10202-8, Kathryn J. Nelson, J., on November 19, 2004, entered a judgment in favor of the regional transit agency.
Supreme Court: Holding that notice posted on the agency's Internet web site satisfied statutory notice requirements and that the property owners did not establish a basis for overturning the agency's necessity determination, the court affirms the judgment.
Charles A. Klinge and Diana M. Kirchheim (of Groen Stephens & Klinge, L.L.P. ), for appellants.
P. Stephen DiJulio and Sharon E. Cates (of Foster Pepper, P.L.L.C. ); Gerald A. Horne , Prosecuting Attorney for Pierce County ; and David H. Prather , Deputy, for respondents.
Timothy D. Ford on behalf of Building Industry Association of Washington, amicus curiae.
¶1 FAIRHURST, J. - Kenneth R. Miller, Barbara I. Miller, and Miller Building Enterprises, Inc., a construction company (hereinafter collectively Miller), own a large parcel of land in Tacoma near a railroad line. Central Puget Sound Regional Transit Authority, commonly known as Sound Transit, seeks to condemn this property to build a park-and-ride for a commuter rail transit station. To do so, Sound Transit must establish, among other things, that the condemnation is necessary. Whether condemnation is necessary is a legislative judgment. Courts will overturn that legislative judgment only when the challenger can prove
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 407
156 Wn.2d 403
that it is the product of actual fraud, or is arbitrary and capricious enough to constitute constructive fraud, or when the government fails to abide by the clear dictates of the law.
¶2 After extensive research and solicitation of community opinion, several potential sites were identified. Sound Transit held a public hearing to determine which proposed site to use for the rail station. By law, potential condemnees are not entitled to actual individualized notice. Instead, Washington law requires that agencies develop procedures to give reasonable notice of these meetings to the public which may include informing the local media. Sound Transit has elected to implement this statutory discretion by posting meeting times and agendas on its web site. It does not directly notify the media.
¶3 The primary issue for review is whether Sound Transit's method of notifying the public of its meetings is adequate. Alternately, Miller challenges the substantive decision that public necessity for the condemnation exists. We hold that Sound Transit complied with statutory requirements in notifying the public of its meetings and that Sound Transit's determination of necessity is not the product of actual or constructive fraud. We affirm the trial court.
I. FACTS
¶4 In 1992, in an effort to respond to the increasing traffic congestion in the Puget Sound region, the Washington Legislature authorized the state's largest counties to seek voter approval to create regional transportation entities to coordinate efforts to create and maintain a healthy transportation infrastructure. RCW 81.112.010 . These transit authorities were given all powers necessary to implement and support a high capacity transportation system, including the power to condemn private property. RCW 81.112.070 , .080(2). Four years later, voters in the Puget Sound region approved the creation and funding of Sound Transit. Among its other projects, Sound Transit is
408 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
attempting to make commuter rail an alternative to commuters along the I-5 corridor.
¶5 Currently, commuter rail runs from downtown Tacoma to downtown Seattle. This case involves Sound Transit's efforts to extend the line south. In 1998, Sound Transit began to investigate possible sites for a new transit station in South Tacoma or Lakewood. In 1999, workshops and public meetings were held in Tacoma to determine the best way to proceed and the best potential sites for transit stations. By 2001, three different possible sites had been identified. One of the sites near South Tacoma Way and south 60th in Tacoma involved a large piece of property owned by Miller. The Miller property would be able to provide about 85 percent of the space needed for a park and ride. While the site is apparently contaminated with industrial waste, it appears that it can safely be used as a parking lot.
¶6 In the first three years of the site investigation, Miller cooperated with Sound Transit in the possible condemnation action. In 2001, Miller executed a release that allowed Sound Transit to enter the property to survey and take soil samples. Meanwhile, in June 2003, Sound Transit scheduled a public Board of Directors meeting to discuss which of three sites in the area was best suited for the transit center. Notice of this meeting and its agenda were published on the Sound Transit web site but it appears that no other steps were taken to inform the community of the upcoming meeting. A Sound Transit employee testified that it was considered "unseemly" to notify property owners individually that a state agency is considering condemning their property before a decision had been made. 1 Verbatim Report of Proceedings (VRP) (Oct. 25, 2004) at 31. Sound Transit's internal rules recite that:
Whenever feasible, the Board Administrator shall furnish the Agenda for meetings of the Board and Committees to one or more local newspapers of general circulation in advance of such meetings.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 409
156 Wn.2d 403
Ex. 14, at 12. According to Marcia Walker, the administrator to the Board of Sound Transit, "[t]he way that [Sound Transit] furnish[es] the agenda and materials to the public and media is by posting on the website." 1 VRP at 101. Walker testified that this method had been used to provide notice ever since Sound Transit had a web site. The trial court specifically found that the method satisfied both statutory requirements and Sound Transit's internal rules.
¶7 At the public Board of Directors meeting, the plan that included the Miller property (along with others) was selected. The record indicates this was motivated in part by the fact that no overpass would have to be built over the railroad tracks and all parking could be consolidated in one lot, which would be simpler to control and secure. Sound Transit then instituted condemnation proceedings against all of the selected properties. On July 10, 2003, Miller was served with a formal notice of intent to acquire property. In August 2004, Miller was served with the petition in eminent domain. The public use and necessity hearing was held on October 25 and November 1, 2005, in Pierce County Superior Court.
¶8 At the public use and necessity hearing, Miller resisted the condemnation and challenged the Board of Directors' determination that the condemnation of their property was necessary. Miller argued that the agency had improperly rejected other sites on the erroneous belief that they were environmentally contaminated and had overlooked the value of a building on their property, which has the apparent distinction of being the first house built along a railroad right-of-way in Tacoma. The trial court concluded that Sound Transit had given proper notice, had established public use and necessity, and that the condemnation action could proceed to the just compensation stage. The trial court explicitly rejected Miller's claim that the action
410 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
was arbitrary and capricious or the product of fraud. Miller sought direct review, which we granted.«1»
II. ISSUES
A. Did Sound Transit adequately notify the community of the meeting agenda where the necessity for condemning the property would be discussed?
B. Did Miller establish that Sound Transit committed actual or constructive fraud in determining that there was public necessity for condemning the Miller property?
III. ANALYSIS
[1]¶9 We first briefly review the underlying law. The power of eminent domain is an inherent attribute of sovereignty. Boom Co. v. Patterson , 98 U.S. (8 Otto) 403, 406, 25 L. Ed. 206 (1878); see also State v. King County , 74 Wn.2d 673 , 675, 446 P.2d 193 (1968) (citing Miller v. City of Tacoma , 61 Wn.2d 374 , 378 P.2d 464 (1963)). That power is limited by the constitution and must be exercised under lawful procedures. Miller , 61 Wn.2d at 382 -83; King County , 74 Wn.2d at 675 . Once a state agency with the power of eminent domain has made the initial determination that condemnation is necessary, the matter moves into court for a three-stage proceeding. First, there must be a decree of public use and necessity. Second, just compensation must be determined. Finally, just compensation must be paid and title transferred. See generally 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 9.28, at 635 (2d ed. 2004) (hereinafter STOEBUCK & WEAVER ); City of Des Moines v. Hemenway , 73 Wn.2d 130 , 138, 437 P.2d 171 (1968); see also WASH. CONST . art. I, § 16. We are only at the first stage of this proceeding
«1»It appears that the property valuation stage of the condemnation proceeding has been stayed awaiting this court's decision on whether Sound Transit has established public necessity for the condemnation.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 411
156 Wn.2d 403
and Miller conceded at the hearing below that this property is being condemned for a public use.«2»Miller challenges whether condemnation is necessary.
[2, 3]¶10 Whether condemnation is necessary is largely a question for the legislative body of the jurisdiction or government agency seeking condemnation. Hemenway , 73 Wn.2d at 139 . A legislative body's declaration of necessity "is conclusive in the absence of proof of actual fraud or such arbitrary and capricious conduct as would constitute constructive fraud." Id . at 139 (citing City of Tacoma v. Welcker , 65 Wn.2d 677 , 399 P.2d 330 (1965)). In the condemnation context, necessary means "reasonable necessity under the circumstances. State ex rel. Lange v. Superior Court , 61 Wn.2d 153 , 377 P.2d 425 (1963). It does not mean immediate, absolute, or indispensable need." Id . at 140.
¶11 Typically, challenges to necessity are raised when arguably excess land is seized or when condemnation is for a disguised private use. See, e.g. , State ex rel. Wash. State Convention & Trade Ctr. v. Evans , 136 Wn.2d 811 , 966 P.2d 1252 (1998) (holding condemnation of property needed for convention center expansion lawful even though an incidental private use would ensue). Out of respect for our
«2»Nor would such a challenge to public use likely prevail. The dissent spends several pages arguing that the determination of public "use" is a judicial inquiry requiring no deference to the agency seeking condemnation. Dissent (J.M. Johnson, J.) at 428-29. Not only do we disagree with the dissent's characterization of the court's role on this question, we note that it is not at issue here. First, while the determination of public use is for the courts, this court has explicitly stated that it will show great deference to legislative determinations. Hemenway, 73 Wn.2d at 139 . Moreover, the condemnation of private property for public transportation is within the state's eminent domain power and almost categorically a public use. State ex rel. Devonshire v. Superior Court for King County , 70 Wn.2d 630 , 636-37, 424 P.2d 913 (1967) (condemnation of private property for 1962 Exposition Monorail a public use (citing State ex rel. McIntosh v. Superior Court for Pacific County , 56 Wash. 214 , 105 P. 637 (1909))). We also note that the dissent continues to conflate the terms "use" and "necessity" as it did in In re Petition of Seattle Popular Monorail Authority , 155 Wn.2d 612 , 635 n.18, 121 P.3d 1166 (2005). Dissent (J.M. Johnson, J.) at 435-36. In the section entitled "Unsubstantiated Public Use Determination," the dissent uses the terms "use" and "necessity" interchangeably throughout the section, claiming that both are judicial determinations. Id . Second, although Miller originally challenged whether the project was for a public use, the trial court made a specific finding that Miller did not contest the determination of public use at trial and Miller did not assign error to the court's finding on appeal. Clerk's Papers at 251 (finding of fact no. 27).
412 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
coordinate branches of government, judicial review is deferential. E.g. , id. , at 823. Additionally,
[w]hen it comes to such discretionary details as the particular land chosen, the amount of land needed, or the kinds of legal interests in that land that are necessary for the project, many Washington decisions have said that the condemnor's judgment on these matters will be overturned only if there is "proof of actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud."
STOEBUCK & WEAVER , at 636 (quoting State v. Brannan , 85 Wn.2d 64 , 68, 530 P.2d 322 (1975)). "Seldom has this court found that a condemning authority has abused its trust in making a declaration of public necessity. This should not be surprising, for it is not to be presumed that such abuses often occur." Brannan , 85 Wn.2d at 68 .
[4]¶12 Washington courts have held that personal notice of the public meeting establishing necessity is not required either by the statute or due process. Port of Edmonds v. Nw. Fur Breeders Coop., Inc ., 63 Wn. App. 159 , 168, 816 P.2d 1268 (1991). Personal notice is required, however, to begin the three-step condemnation proceeding. Id. ("[P]ersonal notice (and hearing) are required before a final taking of a property can occur."). Miller does not contend that they did not receive personal notice of the condemnation proceeding.
A. Notice Adequacy
¶13 Miller challenges the notice Sound Transit provided for the public hearing at which the site selection was made. Miller asserts that the notice was inadequate and, therefore, argues that this court should vacate the legislative declaration that condemnation is necessary.
1. General requirements
[5, 6]¶14 Procedural errors, such as lack of proper notice, are questions of law reviewed de novo. State v. Harris , 114 Wn.2d 419 , 441, 789 P.2d 60 (1990). As the challenger, Miller bears the burden of proof that the notice
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 413
156 Wn.2d 403
was defective. The trial judge found that the notice met the statutory and internal requirements and rejected the claim below. Clerk's Papers (CP) at 252 ("There were no deficiencies in notice, and Sound Transit did hear from the appropriate participants when indicated.").
¶15 Importantly, Miller never convincingly argues that they had no notice of this hearing. Nor does Miller raise a facial due process challenge. There is considerable evidence that Miller was involved in the site selection process for many years. Instead, Miller is essentially raising a general claim that the public had insufficient notice.
[7]¶16 Sound Transit is obligated to give notice of public meetings where eminent domain will be discussed. RCW 81.112.080 (2) (directing regional transportation entities to use the same methodology as first class cities for such procedures); RCW 35.22.288 (setting forth procedures). Specifically:
[E]very city shall establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city's official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement .
RCW 35.22.288 (emphasis added). Sound Transit determined that posting meeting agendas on its own web site satisfied the intent of the statute and furnished appropriate notice to the community.«3»
«3»The dissent takes us to task for ignoring the notice requirements of Sound Transit's internal procedures in our analysis. Dissent (J.M. Johnson, J.) at 432. However, the dissent does not cite any authority to support a claim that the internal procedures govern our analysis. We look to the statutory requirements to determine the adequacy of notice for condemnation. Regardless, the trial court found that Sound Transit complied with its own internal rule regarding notice of public meetings. The court determined that Sound Transit's method of posting notice on its web site was sufficient to furnish notice to the local newspapers. 2 VRP (Nov. 19, 2004) at 12 ("There was nothing that I heard other than the custom for years that this was generally accepted in the community and, for all I knew, generally accepted by the newspapers as well. . . . I think that the ultimate conclusion is that it was an appropriate method of service to the newspapers."). Even if we were to analyze the notice provided by Sound Transit under its internal procedures, we would still find the notice to be sufficient. Sound Transit's internal procedures merely require the agenda to be furnished to one or more local newspapers of general circulation whenever feasible . Ex. 14, at 12 (emphasis added).
414 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
[8]¶17 "The purpose of notice statutes is to apprise fairly and sufficiently those who may be affected of the nature and character of an action so they may intelligently prepare for the hearing." Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720 , 727, 696 P.2d 1222 (1985). Courts have vacated a legislative decision that condemnation is necessary for violation of notice statutes. See Nw. Fur Breeders, 63 Wn. App. at 169 .
¶18 In Northwest Fur Breeders, the local port authority sought to condemn property near a harbor. Nw. Fur Breeders, 63 Wn. App. at 161 . Port districts, like regional transportation districts, are directed by statute to use the same eminent domain procedures as first class cities. Id . at 163. Notice of the public hearing where the condemnation was discussed was given to local newspapers but the notice did not include notice of the preliminary agenda of the meeting as required by statute. Id. Thus readers had no reason to expect that any condemnation would be discussed. Id . at 162. The subsequent condemnation was challenged on the basis of faulty notice. Id . at 163. The court agreed that the notice was substantially faulty and vacated the decree of public necessity. Id . at 169.
¶19 In Northwest Fur Breeders, the primary question for review was whether the statute requiring notice of the preliminary agenda for the legislative body applied to port districts. Id . at 164. Once the decision was made that the statute applied, it was clear that the statute had been violated. See RCW 35.22.288 ("[E]very city shall establish a procedure for notifying the public of . . . the preliminary agenda for the forthcoming council meeting." (emphasis added)). Northwest Fur Breeders provides us little help in deciding whether notice of a public meeting published on a
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 415
156 Wn.2d 403
web page is an appropriate exercise of the discretion vested by statute. The Court of Appeals specifically noted that
We do not hold that notice of the preliminary agenda for meetings at which condemnation will be considered must necessarily be published in a newspaper. Rather RCW 35.22.288 requires the Port to establish a procedure for notifying the public of the preliminary agenda. There may be effective methods of providing the required notice other than publication.
Nw. Fur Breeders, 63 Wn. App. at 167 n.5. Here, the preliminary agenda was published; the question was whether Sound Transit correctly exercised the discretion vested in it by statute. Accordingly, we turn now to whether posting notice and a meeting agenda on the public agency's web site can satisfy the statute.
2. Web posting
¶20 There is very little case law on the subject of the sufficiency of web posting for notice requirements. Courts in several cases have rejected web posting as a method to apprise class members of a class action suit. See, e.g ., Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 631 (D. Colo. 2002). However, in such instances the posting was not an exercise of legislative authority. Additionally, the California Court of Appeals held last year that statements on a web site "hardly could be more public." Wilbanks v. Wolk, 121 Cal. App. 4th 883, 895, 17 Cal. Rptr. 3d 497, 503 (2004); see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997) ("[The Web] provides relatively unlimited, low-cost capacity for communications of all kinds.").
[9, 10]¶21 Miller's argument that posting on a web site does not necessarily "furnish" notice to anyone is unfounded. Just as it is impossible to assure that anyone will look at a particular web site, it is equally impossible to assure that anyone will purchase, much less read, a newspaper. In addition, there is no way to assure that a newspaper will even publish a notice furnished by an agency because agencies are not required to buy advertising space.
416 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
More important, however, is the fact that RCW 35.22.288 does not require an agency to use one of the listed methods, much less prohibit the use of the internet. The statute explicitly states that the methods "may include, but not be limited to" those specifically listed. RCW 35.22.288 . Clearly, any other method that provides comparable notice to those listed would meet the statutory requirement. Miller has not shown that publication on the Sound Transit web site failed in any way to meet the standard set forth in the statute. While precedent on this subject is sparse, posting on a public web site is at least as likely to provide the community with notice as the specifically approved notice given to a newspaper, and this was the method Sound Transit had used for years.
3. Specificity
[11]¶22 Miller also claims that the agenda posted by Sound Transit on its web site was not specific enough to put property owners on notice. We disagree.
¶23 The agenda stated in part that the Board of Directors would consider:
Resolution No. R2003-13 - Authorizing the Executive Director to acquire, dispose, or lease certain real property interests by negotiated purchase, by condemnation, (including settlement) condemnation litigation . . . to affected owners and tenants as necessary for the construction of the Lakewood and South Tacoma Commuter Rail Station, the new Lakewood Connector railroad line to be constructed from D Street to M Street in Tacoma . . . and to execute all documents necessary to convey certain of those interests to the City of Tacoma . . . .
Ex. 12. The agenda was sufficient to put the public on notice that a condemnation in the area would be considered. The statute requires only that the notice be descriptive enough for a reasonable person to be fairly apprised of what was to be discussed at the meeting and notice is generally deemed adequate absent a showing that it was misleading. Dep't of Natural Res. v. Marr , 54 Wn. App. 589 , 596, 774 P.2d 1260 (1989) (citing Nisqually Delta Ass'n v. City of DuPont , 103
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 417
156 Wn.2d 403
Wn.2d 720, 727, 696 P.2d 1222 (1985)). Miller cannot plausibly argue that a notice stating the intent to purchase property by condemnation would not have fairly apprised them of the meeting's purpose. Sound Transit provided all the notice that the statute requires and Miller does not argue that due process requires more.
¶24 We affirm the trial court and hold that Sound Transit's method of notifying the public meets the statutory standard.
B. Substantive Decision
¶25 Additionally, Miller challenges the substantive decision that the condemnation was necessary.«4»The trial court found that Miller had not substantiated any of their challenges by a preponderance of the evidence.
[12]¶26 As stated previously, whether the condemnation is necessary is a legislative question. Hemenway, 73 Wn.2d at 139 ; State ex rel. Hunter v. Superior Court for Snohomish County, 34 Wn.2d 214 , 218, 208 P.2d 866 (1949). A legislative body's determination of necessity is conclusive unless there is proof of actual fraud or arbitrary and capricious conduct amounting to constructive fraud or the government fails to abide by the clear dictates of the law.«5» Hemenway, 73 Wn.2d at 139 . When reasonable minds can
«4»As noted above, we do not review the question of whether the condemnation was for a public use because Miller conceded the point at trial. Our analysis addresses only the question of whether it was necessary to condemn this particular property.
«5»The dissent makes several claims regarding the trial court's review of the evidence, all of which misconstrue our case law regarding the court's role in assessing necessity. First, the dissent claims that the resolution and petition did not contain "particularized facts" about public necessity. Dissent (J.M. Johnson, J.) at 438. However, at no point do either RCW 35.22.288 or RCW 8.12.060 require the resolution or petition to contain the level of detail suggested by the dissent.
Second, the dissent argues that the trial court did not require Sound Transit to make a show of substantial evidence to support its public necessity determination. Id. We reiterate that the necessity determination is deemed conclusive absent a showing by the property owner of actual fraud or arbitrary and capricious conduct amounting to constructive fraud; something Miller did not show. Seattle Popular Monorail, 155 Wn.2d at 629 ; Hemenway , 73 Wn.2d at 139 . However, even if this were not so, Sound Transit provided extensive evidence of the reasons for its determination. The Millers simply do not agree with those reasons. The fact that another choice could have been made does not tip the balance to the property owner in a review of necessity.
Third, the dissent claims that Sound Transit failed to provide rebuttal evidence to counter evidence presented by Miller. Dissent (J.M. Johnson, J.) at 439. Again, based on the test we have outlined above, an agency is not required to rebut a property owner's evidence where the parties merely disagree on the chosen site. If the property owner has not shown actual fraud or arbitrary and capricious conduct by the agency, a court will generally let the agency's choice stand. Welcker 65 Wn.2d at 684 -85. Even if such evidence were required, however, the record indicates that Sound Transit presented voluminous evidence supporting its site choice; the trial court was not obliged to require more.
418 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
differ, courts will not disturb the legislative body's decision that necessity exists so long as it was reached "honestly, fairly, and upon due consideration" of the facts and circumstances. Welcker , 65 Wn.2d at 684 . The decision may be unwise, but it is still a decision for the legislative body to make, not this court. Miller, 61 Wn.2d at 391 . Even if the decision was partially motivated by improper considerations, it will not be vacated so long as "the proposed condemnation demonstrates a genuine need and . . . the condemnor in fact intends to use the property for the avowed purpose." In re Petition of Port of Grays Harbor, 30 Wn. App. 855 , 864, 638 P.2d 633 (1982) (citing State v. Hutch, 30 Wn. App. 28 , 631 P.2d 1014 (1981)).
¶27 Miller suggests that this court created a nine-part test in Deaconess Hospital v. Washington State Highway Commission , 66 Wn.2d 378 , 403 P.2d 54 (1965), to determine whether the decision to condemn property was arbitrary and capricious.«6»But in 1998, 33 years after Deaconess, this court specifically noted that "[we have] not
«6»Miller refers to the following passage for support:
By what tests should the court gauge administrative decisions? Here are the principal standards: Did the agency proceed in accordance with and pursuant to constitutional and statutory powers? Were the agency's motives honest and intended to benefit the public? Were they honestly arrived at - that is, free from influence of fraud and deceit? Were they free of any purpose to oppress or injure - even though injury and damage to some may be inherent in accomplishing the particular public benefit? Did the administrative agency give notice, where notice is due, and hear evidence where hearings are indicated? Did the agency make its decision on facts and evidence? Were its actions in the last analysis rational, that is, based upon a reasonable choice supported by facts and evidence? If the answers to all of these queries are in the affirmative, then the decision of an administrator, unless placed under complete judicial review by law, cannot be held arbitrary, capricious, unreasonable or oppressive by the courts. That the courts may have reached a decision, made a choice or a conclusion different from that of the administrative agency, or taken wiser or more sensible action, does not empower them to do so.
Deaconess , 66 Wn.2d at 405 -06.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 419
156 Wn.2d 403
previously enumerated factors to consider when determining whether a public use is truly necessary." Evans, 136 Wn.2d at 823 . "[S]ome relevant considerations," however, "are the dollar contribution of the private party, the percentage of public versus private use, and whether the private use is occurring in an architectural surplus of usable space." Id .
[13]¶28 Deaconess provided some different considerations but made clear that as long as the "administrative agency has acted honestly, with due deliberation, within the scope of and to carry out its statutory and constitutional functions, and been neither arbitrary, nor capricious, nor unreasonable, there is nothing left for the courts to review." Deaconess , 66 Wn.2d at 406 . Again, this is rooted in our respect for the other branches of government. "A different conclusion would place the judiciary in the untenable position of substituting its judgment for that of the administrative agency contrary to a number of decisions." Id. This court has declined to create a definitive laundry list of considerations and this case provides no reason to depart from our tradition and precedent.
[14]¶29 Instead, since the trial judge has already weighed the evidence supporting public necessity, this court will review the record to determine only whether the factual findings are supported by substantial evidence. Substantial evidence is viewed in the light most favorable to the respondent and is evidence that would "persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641 , 644, 870 P.2d 313 (1994).
¶30 We turn now to the specific challenges.
1. Historical nature of the property
¶31 Miller argues that Sound Transit did not properly consider the historical nature of the property and, accordingly, its decision was arbitrary and capricious. At some
420 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
point after March 2002, Miller learned that a house on the property had possible historical significance and that at least one other buyer was interested in the property. That buyer, however, was not interested in acquiring the property if it was going to be condemned. It appears that a house on the property was "built along the right-of-way by the railroad workers in the evening hours after work. They are referred to as twilight workers." 2 VRP (Nov. 1, 2004) at 121. The Railcar Preservation Society attempted to interest Sound Transit in preserving the home as part of the transit center but, ultimately, Sound Transit declined to do so and the society turned to other projects.
¶32 The historical value of the property is questionable. After consideration, the Tacoma historic preservation office declined to nominate the house as a historic landmark. Similarly, the State Office of Archeology and Historic Preservation found the transit project had no adverse historical impacts. While it appears Sound Transit was not initially aware of the historical significance of the house when it was originally considering various sites, it was well aware of it by the time it had decided to condemn the property.
[15]¶33 This court has already held that it is not arbitrary and capricious to select a site with a "substantial dwelling house" on the property, even when vacant tracts are nearby. Hunter, 34 Wn.2d at 219 . In this case, the evidence of the historic property was considered by Sound Transit before it decided condemnation was necessary. This was affirmed by the trial court. Miller has not established arbitrary and capricious conduct upon these facts.
2. Problems with the other sites
¶34 Miller asserts that Sound Transit was mistaken about the potential environmental problems with the various sites.«7»At some point during the process, Sound Transit
«7»The dissent also asserts that Sound Transit made false representations about environmental problems related to the properties under consideration. Dissent (J.M. Johnson, J.) at 438. It appears, though, that all of the properties had some environmental problems and Sound Transit simply failed to comment about the environmental issues on the Miller property. CP at 249 (finding of fact no. 19). The dissent claims that Sound Transit relied on "clearly erroneous factual findings" in making its determination and that this constituted arbitrary and capricious conduct. Dissent (J.M. Johnson, J.) at 438-39. We disagree. It is far from clear to what extent Sound Transit relied on this information in making its determination. In addition, the trial court correctly considered the possibility that this and other facts might have affected the outcome and ultimately concluded that Sound Transit's determination was not unreasonable. CP at 252 (conclusion of law no. 12).
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 421
156 Wn.2d 403
appears to have erroneously believed that the alternative sites were contaminated but that the Miller property was not. In fact, it appears that all the Tacoma sites were contaminated to some degree.
[16]¶35 However, it is not the role of the court to take a second look at the various environmental considerations at issue. As long as Sound Transit considered the environmental impacts, it is not for the court to substitute its judgment in the absence of some demonstration of fraud or arbitrary and capricious conduct. See Brannan, 85 Wn.2d at 74 -77. We note in passing that questions of public use and necessity are not subject to the State Environmental Policy Act, chapter 43.21C RCW. See generally Marino Prop. Co. v. Port of Seattle, 88 Wn.2d 822 , 830-31, 567 P.2d 1125 (1977).
3. Better alternate locations
[17]¶36 Miller contends that a nearby site would be better suited for the project and that condemnation is not necessary. But a particular condemnation is necessary as long as it appropriately facilitates a public use. Hemenway , 73 Wn.2d at 138 . Put another way, when there is a reasonable connection between the public use and the actual property, this element is satisfied. It need not be the best or only way to accomplish a public goal. This court has explicitly held already that the "mere showing" that another location is just as reasonable does not make the selection arbitrary and capricious. Hunter, 34 Wn.2d at 219 .
¶37 This broad approach is rooted not only in our deference to other branches of government, but also to the institutional competence of courts. We have already ruled that site selection is essentially a legislative question not a
422 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
judicial one. Courts give especial deference to agency site selection decisions because courts "are not trained or equipped to pick the better route, much less design and engineer the project." Deaconess , 66 Wn.2d at 405 ; accord Brannan , 85 Wn.2d at 69 . Expert testimony from landscape architect Stephen Speidel, who believed another site was better suited for the transit station, is not a basis for reversing the legislative decision that condemnation was necessary.
4. Intimidation
¶38 Finally, Miller claims that one of the witnesses, William Eugene "Skip" Vaughn, was threatened by the chair of the Sound Transit Board. While this was raised to the trial court, no finding of fact or conclusion of law directly addresses it. The trial court impliedly found it uncompelling by finding that Sound Transit did not act in an arbitrary and capricious fashion.
¶39 Vaughn is chair of the South Tacoma Neighborhood Council. He had been involved in the siting of the South Tacoma rail station since at least 1998 and had attended at least three public meetings concerning it. After the site selection was made, Vaughn requested reconsideration. He preferred a different site. He testified that he met with Pierce County Executive John Ladenburg and Kevin Phelps, the city of Tacoma representative on the Sound Transit Board. Vaughn testified that "[t]hey indicated the decision had been made and would not discuss the reasons for it but indicated that if we made waves, we'd probably lose the station altogether." 2 VRP (Nov. 1, 2004) at 116. He also testified that he took their comments "[k]ind of as a threat to be quiet." Id. at 117.
¶40 We are unconvinced that Ladenburg's and Phelps' statements were threats.«8»At worst, Ladenburg and Phelps
«8» Black's Law Dictionary defines "threat" as "[a] communicated intent to inflict harm or loss on another or on another's property, esp[ecially] one that might diminish a person's freedom to act voluntarily or with lawful consent." BLACK'S LAW DICTIONARY 1519 (8th ed. 2004).
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 423
156 Wn.2d 403
appeared to believe that without community support, there would be no transit station. There is no evidence on the record that Ladenburg or Phelps intended that the presence or absence of a transit station to adversely affect Vaughn.«9»
¶41 We find each of Miller's specific challenges to be without merit. Moreover, even if we agreed with one or more of Miller's contentions, we still might not disturb Sound Transit's finding of necessity because of the high level of deference we accord legislative bodies in making necessity determinations. Hunter , 34 Wn.2d at 218 ; Port of Grays Harbor, 30 Wn. App. at 864 (holding necessity determination will not be vacated as long as "the proposed condemnation demonstrates a genuine need and . . . the condemnor in fact intends to use the property for the avowed purpose" (citing Hutch, 30 Wn. App. 28 )).
IV. CONCLUSION
¶42 We hold that Sound Transit properly exercised the discretion vested in it by law when it published its meeting agenda on its web site and that Miller has not shown that the public necessity determination was the product of arbitrary and capricious conduct or actual fraud. Accordingly, we affirm the trial court on all counts.«10»
C. JOHNSON, MADSEN, BRIDGE, and OWENS, JJ., concur.
¶43 ALEXANDER, C.J. (dissenting) - The purpose of notice statutes is to fairly and sufficiently inform those who may be affected by government action of the nature and character of a proposed action so they may intelligently prepare for the public hearing on the action. Nisqually Delta Ass'n v.
«9»Additionally, Miller alleges that a neighbor was told he could not get building permits while his property was being considered for condemnation. This does not appear to be relevant.
«10»Sound Transit also moves for sanctions for filing a frivolous appeal. RAP 18.9(a). We deny this motion, as there was a tenable issue of whether web posting is sufficient to meet notice requirements. Miller also moves for attorney fees under RCW 8.25.075 . Given our disposition, we deny Miller's motion.
424 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
City of DuPont , 103 Wn.2d 720 , 727, 696 P.2d 1222 (1985). In this case, Kenneth and Barbara Miller and their construction company, Miller Enterprises, Inc., knew for years that they might be affected by Central Puget Sound Regional Transit Authority's (Sound Transit) rail project in Tacoma. In July 2001, the Millers even allowed the transit agency to survey and take soil samples from some of their land that was potentially on the project's path. That does not mean, however, that the Millers were "fairly and sufficiently" apprised that on June 26, 2003, the Sound Transit board would consider a resolution authorizing condemnation of their land. Because I believe that Sound Transit did not adequately inform affected parties before authorizing condemnation in this case, I dissent.
¶44 Prior notice that the condemnation resolution at issue would be considered was limited to a single item on the June 26, 2003, meeting agenda, posted only on the agency's web site. That single agenda item referred to acquiring "certain real property interests" by negotiated purchase or condemnation, "as necessary for the construction of the Lakewood and South Tacoma Commuter Rail Stations." Ex. 12. And while the Miller property was described in Exhibit A to the proposed resolution, no specific locations were mentioned on the agenda posted electronically for public notice purposes. To say "Lakewood and South Tacoma" hardly narrows the possibilities. Therefore, at best, the meeting notice merely alerted the Internet-attentive people within the affected area to seek more details elsewhere. At worst, it utterly failed to apprise anyone lacking Internet access of the existence of the resolution.
¶45 "[A] proper hearing can be no greater protection for the public and the individual landowner than the opportunity afforded by the notice to take an informed part therein." Glaspey & Sons, Inc. v. Conrad , 83 Wn.2d 707 , 713, 521 P.2d 1173 (1974). When interested parties are ill-informed of government proposals, "the public at large will be deprived of an 'informed' resolution of problems that
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 425
156 Wn.2d 403
are the subject of the hearing." Id . at 713. Here, Sound Transit does not point to any evidence in the record indicating that the Millers, or any other parties interested in the condemnation plan, were known to have access to the Internet. Yet the agency says it routinely relied solely on Internet postings to announce meeting agendas.«11»In doing so, it risked excluding a segment of the population from contributing to "an informed resolution" of station siting.
¶46 While I agree with the majority that the relevant statute, RCW 35.22.288 , does not necessarily require notice to be published in a newspaper, I disagree that the Internet-only notice in this case met the intent of the statute. It is highly optimistic to expect a landowner's clicks of the computer mouse to lead, at the right time and on the right site, to a posted proposal bearing on his property interests. It may be true that relying on random turns of a newspaper's pages is just as unlikely to inform an affected citizen of a pending action. But the statute explicitly authorizes agencies to notify the public through newspapers, whereas the Internet is not mentioned. Furthermore, in my view newspapers are more accessible to a wider range of people due to their cost - one of the few things in life still available for pocket change. Accordingly, I am troubled that, despite the apparent absence of any prior e-mail correspondence with the Millers indicating they were "wired," so to speak, Sound Transit simply presumed they would receive notice posted exclusively on the Internet. I do not believe government should rest so easily in the assumption that this more expensive medium is universal. Due process demands that government err on the side of giving abundant notice when it seeks to take property. Therefore, I respectfully dissent.
CHAMBERS, J., concurs with ALEXANDER, C.J.
«11»I take little comfort in the agency's suggestion that a newspaper reporter might peruse the agency's web site and independently inform the non-Internet-using public of meeting plans. Such a passive approach is inconsistent with the RCW 35.22.288 requirement for "notifying the public."
426 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
¶47 J.M. JOHNSON, J. (dissenting) - Appellants Kenneth and Barbara Miller had their property condemned by the Central Puget Sound Regulatory Transit Authority (Sound Transit) contrary to requirements of public notice and without Sound Transit proving the public necessity of the condemnation. Sound Transit contented itself by solely posting the meeting agenda on its web site rather than notifying the owner and public through publication in a local newspaper or through posting on the property or in other public places, as the statute envisions. The internet posting did not even specify which lots were considered for condemnation but instead gave a general location of the property.
¶48 Sound Transit voted to condemn the Millers' property but never made a showing that condemnation of Millers' property was a public necessity - either at the board meeting or at the hearing before the trial court. At every step of the condemnation process, Sound Transit asserted that agency determinations of public necessity are conclusive.
¶49 Washington Constitution article I, section 16 includes the express declaration that the question of a public use supporting a taking of private property by the government is a judicial question "without regard to any legislative assertion." This requirement is ignored (or explained away) by the majority, which instead suggests that "public use" is a legislative question entitled to deference. The majority's standard of review for public use contradicts the express constitutional mandate of article I, section 16.
¶50 Here, this error has the effect of allowing an agency to take a citizen's private property without adherence to proper notice procedures and to condemn without proper public consideration. The constitutionally limited eminent domain power is improperly expanded by the majority at the expense of the peoples' individual rights to own and use property and the public right to notice of governmental (proposed) action. I therefore dissent.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 427
156 Wn.2d 403
I. SCOPE OF CONDEMNATION AUTHORITY
¶51 The right to own and use private property is an inherent right of the people, strongly protected in the constitution of this state. So serious is the Washington Constitution's respect for the right to private property that it expressly provides for strictly limited exercise of eminent domain power by the legislature, closely examined by the judiciary in order to protect private property from governmental infringement:
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 determined as such, without regard to any legislative assertion that the use is public . . . .
WASH. CONST . art. I, § 16.
¶52 The placement of this provision in article I, Declaration of Rights, further underscores the primacy of the right of the people to own private property. That placement, and the language quoted above, indicates an eminent domain power that is strictly limited in rightful application.«12»
¶53 Because of the inherent right of the people to own property, and the limited power of eminent domain, such
«12» See Healy Lumber Co. v. Morris , 33 Wash. 490 , 505, 74 P. 681 (1903):
It was no doubt for the purpose of preventing enthusiastic legislation, practically destroying this limitation [on the exercise of eminent domain], that the question of public use was especially submitted to the courts, who are, and should be, ever watchful in maintaining inviolate the constitutional rights of the citizen.
See also 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) ("The judicial determination clause in the Washington Constitution is a clause currently existing in only four other states [Arizona, Colorado, Mississippi and Missouri]."). "[T]he 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 to determine the character of proposed public uses." Id. (footnotes omitted).
428 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
power must be delegated by the legislature. Municipal corporations do not have an inherent power of eminent domain. Agencies may exercise such power only when expressly authorized to do so by the state legislature and in strict accord with such delegation. See, e.g ., State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack , 53 Wn.2d 55 , 60, 330 P.2d 567 (1958); Tepley v. Sumerlin , 46 Wn.2d 504 , 507, 282 P.2d 827 (1955).
¶54 Statutes conferring condemnation power are in derogation of the people's right, State ex rel. King County v. Superior Court for King County, 33 Wn.2d 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. See, e.g. , Stojack , 53 Wn.2d at 60 ; State ex rel. Postal Telegraph-Cable Co. v. Superior Court for Grant County , 64 Wash. 189 , 193, 116 P. 855 (1911).«13»
¶55 To determine whether a use of the eminent domain power is permissible under our constitution, we employ a three-part test to judicially ascertain "(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." In re Petition of City of Seattle , 96 Wn.2d 616 , 625, 638 P.2d 549 (1981) (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).
¶56 Because constitutional rights of a property owner are implicated, the burden of proof is on the condemning agency to demonstrate that the condemnation is for a public use and that (all) the taking is necessary for that public use. Convention Ctr ., 136 Wn.2d at 822 -23; Theilman , 59 Wn.2d
«13»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 for Yakima County , 19 Wn.2d 791 , 800, 144 P.2d 916 (1944) (quoting 1 LEWIS ON EMINENT DOMAIN , p. 708, § 388 (3d ed.)).
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 429
156 Wn.2d 403
586; State ex rel. Sternoff v. Superior Court for King County , 52 Wn.2d 282 , 325 P.2d 300 (1958).«14»
¶57 Article I, section 16 of our state constitution requires a judicial "public use" inquiry. See State ex rel. Puget Sound Power & Light Co. v. Superior Court for Snohomish County , 133 Wash. 308 , 311, 233 P. 651 (1925). The inquiries regarding public interest and necessity are judicial corollaries which provide enforcement of that constitutional mandate. Accordingly, article I, section 16 requires the court to determine whether an agency has adequately proved that condemnation satisfies the three-part test before private property may be taken.
¶58 These constitutional safeguards to the right to own property provided by article I, section 16 are undermined by the majority's assertion of an overly-deferential standard which accepts agency declarations as conclusive absent fraud or arbitrary and capricious conduct. Majority at 411. Our respect for coordinate branches of government should not nullify an explicit constitutional provision requiring the judiciary to provide a check upon taking of private property.
¶59 Furthermore, long-standing jurisprudence of this court mandates that legislative determinations do not preclude judicial examinations of the decision. 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 Puget Sound Power & Light Co. , 133 Wash. at 312)); State ex rel. Andersen v. Superior Court for Lincoln County , 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."); Healy Lumber Co. v. Morris , 33 Wash. 490 , 501, 74 P. 681 (1903) (" 'Under such circumstances the case
«14»The constitutional nature of the right of citizens to private property contradicts the majority's assertion that "[a]s the challenger, Miller bears the burden of proof that the notice was defective." Majority at 412.
430 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
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.' " (quoting Talbot v. Hudson , 82 Mass. (16 Gray) 417 (1860))).
¶60 Judicial abdication of such a constitutional mandate unjustifiably expands the power of the legislature and agencies in contravention of the clear terms of article I, section 16. Our constitution's use of the word "shall" is imperative and operates to create a duty on the courts. See, e.g., Crown Cascade, Inc. v. O'Neal , 100 Wn.2d 256 , 668 P.2d 585 (1983). Only by ignoring that provision can the majority reach its standard of deference to the agency rather than judicial review. See WASH. CONST . art. I, § 29 ("The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.").
II. FAILURE TO PROVIDE PROPER NOTICE
¶61 Sound Transit's exercise of eminent domain in this case was wrongful from the beginning due to its failure to provide proper notice in accordance with pertinent laws and its own procedures.
¶62 Municipal corporations do not have an inherent power of eminent domain and may exercise such power only when expressly authorized by the legislature and in accordance with that authority. See, e.g., Stojack , 53 Wn.2d at 60 . Statutes conferring such power "must be strictly construed, both as to the extent of the power and as to the manner of its exercise." Postal Telegraph-Cable Co. , 64 Wash. at 193.
¶63 RCW 81.112.080 , which authorizes eminent domain by Sound Transit, declares that the exercise of such power shall be in the same manner as cities of the first class. Cities of the first class are required by RCW 35.22.288 to publish meaningful notices of meetings contemplating eminent domain. Port of Edmonds v. Nw. Fur Breeders Coop., Inc ., 63 Wn. App. 159 , 816 P.2d 1268 (1991).
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 431
156 Wn.2d 403
¶64 If the condemning governmental entity fails to give proper notice, the judgment of public use and necessity must be reversed and the eminent domain process must begin anew. Id. at 169. See also Deaconess Hosp. v. Wash. State Highway Comm'n , 66 Wn.2d 378 , 405, 403 P.2d 54 (1965) (failure to provide notice when required constitutes arbitrary and capricious conduct).
¶65 Procedural errors, such as lack of proper notice, are questions of law reviewed de novo. State v. Harris , 114 Wn.2d 419 , 441, 789 P.2d 60 (1990). Because statutes delegating eminent domain power are in derogation of the people's rights, King County, 33 Wn.2d at 82 , a condemning agency must establish that notice requirements were fulfilled in order to validly exercise the power and deprive a person of property.
¶66 Under the express terms of RCW 35.22.288 :
[E]very city shall establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city's official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.
Sound Transit passed Resolution No. 1-1 (Amended) adopting and amending rules and operating procedures for the Board. Ex. 14; 1 Verbatim Report of Proceedings (VRP) (Oct. 25, 2004) at 99. Section 16 of Resolution No. 1-1 (Amended) includes a requirement of public notice for upcoming meetings:
Whenever feasible, the Board Administrator shall furnish the Agenda for meetings of the Board and Committees to one or more local newspapers of general circulation in advance of such meetings.
Ex. 14, at 12. But Sound Transit did not do so here. Additionally, sections 4.A. and 4.B. require notification to local newspapers of general circulation and radio and
432 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
television stations that have on file with the Board a request to be notified. Id. at 5. Here, Sound Transit merely placed an agenda on their web site.
¶67 Thus, Sound Transit did not comply with either the statute or its own rule in providing notice to the public of the meeting. Mere placement of the agenda on the web site does not amount to "furnishing" notice to local newspapers as required by section 16 of Resolution No. 1-1 (Amended). Absent even the simplest communication concerning the agenda to one or more local newspapers of general circulation via fax, telephone, postcard, or even e-mail, such a posting does not constitute a "furnishing" of the agenda in any meaningful sense.
¶68 The majority ignores Sound Transit's requirements under section 16 of its own resolution, offering a footnote to affirm the trial court's conclusion that Sound Transit complied with its own internal rule. See majority at 413 n.3. The majority confuses the analysis by applying the text of RCW 35.22.288 only to the actions taken by Sound Transit.
¶69 Proper analysis requires consideration of compliance with the procedures that Sound Transit adopted pursuant to RCW 35.22.288 . Agencies and municipal corporations must comply with internal procedures that are promulgated pursuant to statutory requirement. Compliance is a necessary implication of a statutory mandate. RCW 35.22.288 requires that procedures be adopted by Sound Transit, and Sound Transit's statutorily mandated procedures (i.e., section 16 of Resolution No. 1-1 (Amended)) require that Sound Transit furnish notice to newspapers. Sound Transit's adopted procedures provide the first standard for measuring the adequacy of Sound Transit's actions. We should hold that agencies and municipal corporations cannot ignore their own procedures and that Sound Transit's failure to comply with its own procedures alone requires reversal of the trial court.«15»
«15»The majority, however, contends that we should ignore Sound Transit's compliance or noncompliance with its own adopted standards. Majority at 413 n.3. The majority's contention is misguided. Rightful exercise of judicial review under article I section 16 and the rule of law require that we hold Sound Transit's noncompliance with its own procedures as fatal.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 433
156 Wn.2d 403
¶70 Sound Transit further violated the express terms of the RCW 35.22.288 by placing the meeting agenda only on the web site. RCW 35.22.288 's enumeration of methods for notifying the public of upcoming hearings and the preliminary agenda for such meetings does not purport to be exhaustive. The statute limits the range of acceptable notice to processes that will satisfy the intent of the notification statute.
¶71 When the term "posting" is used in notice statutes, it always refers to posting of notice in a physical public place or affected area (e.g., on the property itself), but does not refer to posting on a web site. RCW 35.13.140 (every ordinance must be published at least once in a newspaper and posted in at least "three public places"); RCW 35.27.300 (every ordinance must be published at least once in a newspaper and posted); RCW 43.21C.080 (notice of action by governmental agency must be published in a newspaper, mailed, and posted at the project site).
¶72 Although web site posting of the agendas of meetings may help satisfy notice requirements if combined with other methods of communication, this new technology and its low level of coverage among the public renders web posting insufficient to alone meet the requirements of RCW 35.22.288 .
¶73 This conclusion is bolstered by the importance of the property rights that are implicated. Nor is the notice burden on an agency particularly onerous since there are simple, cost-effective, and commonly-accepted processes to notify the public. Contrary to one Sound Transit employee's testimony that it was considered "unseemly" by the agency to notify property owners individually, majority at 408; 1 VRP (Oct. 25, 2004) at 31, all Washington cities use the same statutory authority and have successfully used appropriate methods of notice for years.
434 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
¶74 As the majority notes, there is little case law considering the sufficiency of web posting for notice requirements. Majority at 415. Indeed, there is none upholding notice solely through web posting. One federal court has specifically rejected electronic means and internet notice alone as sufficient to notify a class of plaintiffs for a class action lawsuit. See Reab v. Elec. Arts, Inc ., 214 F.R.D. 623, 631 (D. Colo. 2002). The dearth of cases on web-notice can be attributed to the internet's status as a new and emerging technology which large segments of our population have not yet accessed. No case, until this majority, has held web posting notice sufficient.
¶75 It is also worthy of note that although RCW 35.22.288's enumeration of methods for notification is not exhaustive, the legislature did not say web posting gives sufficient notice. I would not rewrite the statute but would hold that web site posting alone does not satisfy RCW 35.22.288 (or other notice requirements in statute).
¶76 Additionally, the actual notice provided by Sound Transit in this case was inadequate under RCW 35.22.288 . The actual property was not identified in the agenda, so that neither the Millers nor the public would know this property was to be taken.
¶77 As stated above, statutes conferring eminent domain power "must be strictly construed, both as to the extent of the power and as to the manner of its exercise." Postal Telegraph-Cable Co. , 64 Wash. at 193. Because such statutes are in derogation of a constitutional right, King County , 33 Wn.2d at 82 , effective notice must require that the agenda fairly apprise a reasonable person of the actual land under consideration for condemnation.
¶78 The notice statute's purpose is to fairly and sufficiently apprise those who may be affected of the nature and character of the action so that they may intelligently prepare for the hearing. Barrie v. Kitsap County , 84 Wn.2d 579 , 585, 527 P.2d 1377 (1974); Nisqually Delta Ass'n v. City of DuPont , 103 Wn.2d 720 , 727, 696 P.2d 1222 (1985).
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 435
156 Wn.2d 403
¶79 Sound Transit, like other agencies, is required to have public meetings to assure public input in decision making. See RCW 42.30.010 -.920.«16»Public notice that insufficiently apprises those who may be affected undermines the public confidence and trust that is placed into those legislative bodies and their decision-making abilities.«17»
¶80 Here, the agenda posted on the Sound Transit web site contains a general description that Sound Transit would be considering condemning property for the South Tacoma Commuter Rail Station.«18»This did not sufficiently apprise the Millers or the public which actual property constituted the agenda item. Identification of the property could be accomplished through a listing by street address, by owner name, or by parcel number. I disagree with the majority in the conclusion that "notice that a condemnation in the area would be considered," majority at 416, satisfies the applicable requirements. Notice of condemnation "in the area" is simply inadequate. Because of the protection
«16»The Open Public Meetings Act of 1971 (chapter 42.30 RCW) declares principles underlying public input and awareness of agency meetings:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
RCW 42.30.010 .
«17»The Open Public Meetings Act contains a notice provision similar to the one directly at issue here:
No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.
RCW 42.30.060 (1).
«18»The meeting agenda read:
Resolution No. R2003-13 - Authorizing the Executive Director to acquire, dispose, or lease certain real property interests by negotiated purchase, by condemnation, (including settlement) condemnation litigation, or entering administrative settlements, and to pay eligible relocation and re-establishment benefits to affected owners and tenants as necessary for the construction of the Lakewood and South Tacoma Commuter Rail Stations. . . .
Ex. 12.
436 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
our constitution gives to the right to private property and the limited nature of eminent domain, I would hold that the statute requires specific identification of the property to be condemned.
III. UNSUBSTANTIATED PUBLIC USE DETERMINATION
¶81 Sound Transit's exercise of eminent domain in this case was also wrongful due to its failure to prove public necessity for the taking in accordance with applicable constitutional standards.
¶82 Article I, section 16's mandate is that public use be a judicial determination and that statutes conferring such power must be construed strictly. Judicial inquiry into public use requires an inquiry into public necessity as a judicial corollary to provide enforcement of the constitutional mandate. As this court has previously maintained:
"[p]ublic use" and "necessity" cannot be separated with scalpellic precision, for the first is sufficiently broad to include an element of the latter. Can it be said that a "contemplated use" that does not include an element of "necessity" meets the constitutional mandate that it "be really public"? We think not.
Theilman , 59 Wn.2d at 594 .
¶83 I reject the majority's conclusion that great deference be given to agency declarations of necessity. This would make agencies nearly immune from judicial review of public use. Although declarations of public use and necessity are properly legislative declarations in the first instance , our overriding constitutional duty requires independent judicial determinations in the final instance .
¶84 The court should require condemning agencies to make an objective, affirmative showing that the declaration of public use is based upon substantial evidence. See State v. Burch , 7 Wn. App. 657 , 660, 501 P.2d 1239 (1972). The trial court must make findings that support the legal conclusion as to the necessity of the taking. See City of Des Moines v. Hemenway , 73 Wn.2d 130 , 140-41, 437 P.2d 171
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 437
156 Wn.2d 403
(1968). The condemning agency must establish that the declaration was made "honestly, fairly, and upon due consideration" of the facts and circumstances. City of Tacoma v. Welcker , 65 Wn.2d 677 , 684, 399 P.2d 330 (1965).
¶85 Judicial review of public necessity must also recognize our case law that an agency declaration will not be upheld where it is arbitrary or capricious, or through abuse of discretion, violation of law, improper motives, or collusion. Stojack , 53 Wn.2d at 64 . Declarations based upon fraud or constructive fraud will not be upheld. "To establish constructive fraud petitioners must show willful and unreasoned action without consideration and regard for facts or circumstances." In re Petition of Port of Seattle , 80 Wn.2d 392 , 398, 495 P.2d 327 (1972); cf. Port of Olympia v. Deschutes Animal Clinic, Inc. , 19 Wn. App. 317 , 321, 576 P.2d 899 (1978) ("[W]e believe that the term constructive fraud is misleading in this context. Our courts, in actuality, review the declaration [of necessity] under the arbitrary and capricious standard, and we see no merit in applying a different label to that well-known test.").
¶86 Particularly relevant here is this court's language in Postal Telegraph-Cable Co. , 64 Wash. at 195:
It is sufficient to make a strong prima facie case, but when convincing evidence is adduced by the owner that the land sought is not reasonably necessary, and that a slight change of location to other of his land will equally meet the necessity of the taker and be of much less damage to the owner, then it is incumbent upon the taker to rebut such evidence, since the refusal to make such change, if unexplained would amount to oppression and be an abuse of the power.
¶87 Courts reviewing public necessity declarations should also find guidance from this court's decision in Deaconess, 66 Wn.2d at 405 -06, wherein we delineated several factors that are important for consideration:
By what tests should the court gauge administrative decisions? Here are the principal standards: Did the agency proceed in accordance with and pursuant to constitutional and
438 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
statutory powers? Were the agency's motives honest and intended to benefit the public? Were they honestly arrived at - that is, free from influence of fraud and deceit? Were they free of any purpose to oppress or injure - even though injury and damage to some may be inherent in accomplishing the particular public benefit? Did the administrative agency give notice, where notice is due, and hear evidence where hearings are indicated? Did the agency make its decision on facts and evidence? Were its actions in the last analysis rational, that is, based upon a reasonable choice supported by facts and evidence? If the answers to all of these queries are in the affirmative, then the decision of an administrator, unless placed under complete judicial review by law, cannot be held arbitrary, capricious, unreasonable or oppressive by the courts.
¶88 Here the majority erroneously confirms that Sound Transit's public necessity determination was correct. Based upon this record, however, Sound Transit did not demonstrate that its declaration was made "honestly, fairly and upon due consideration" of the facts and circumstances. See Welcker , 65 Wn.2d at 684 .
¶89 First, Sound Transit's determination that condemning Miller's property constituted a public necessity was based upon an erroneous factual assertion that there were contamination problems with other sites. As the majority acknowledges, "At some point during the process, Sound Transit appears to have erroneously believed that the alternative sites were contaminated but that the Miller property was not." Majority at 420. Indeed, the trial court stated in its findings that Sound Transit represented at public meetings that Superfund problems inhibited alternative locations but that such representations were not true. Clerk's Papers (CP) at 249 (Findings of Fact 19).
¶90 The record here requires us to conclude that alleged Superfund problems were wrongly relied upon by Sound Transit in making its determination. Only by adopting a rubber-stamp standard of review at odds with article I, section 16 and relevant case law can the majority look the
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 439
156 Wn.2d 403
other way.«19»To rely upon clearly erroneous factual information of such magnitude amounts to arbitrary or capricious conduct. See Welcker , 65 Wn.2d at 684 ("Arbitrary and capricious conduct is willful and unreasoning action, without consideration and regard for facts or circumstances.").
¶91 Additionally (and more fundamentally), neither Sound Transit Resolution No. R2003-13 nor Sound Transit's petition filed with the trial court contains particularized facts supporting a finding that taking Miller's property was a public necessity. The trial court hearing should have required Sound Transit to make a showing of substantial evidence in support of its public necessity declaration. Sound Transit has instead relied consistently upon the proposition that agency conclusions are conclusive. The constitutional mandate of article I, section 16 and our case law do not countenance rubber-stamp review by the judiciary of challenged public necessity declarations without a showing of evidence in support.
¶92 Consistent with this failure to prove facts supporting a finding that Miller's property is a public necessity, Sound Transit also failed to offer evidence rebutting Miller's evidence establishing the alternative site. Several cases have addressed a condemning agency's failure to properly consider alternatives. See, e.g., State ex rel. Lange v. Superior Court for King County, 61 Wn.2d 153 , 377 P.2d 425 (1963); Wagle v. Williamson , 51 Wn. App. 312 , 315-16, 754 P.2d 684 (1988); State v. Burch , 7 Wn. App. 657 , 501 P.2d 1239 (1972); State Parks & Recreation Comm'n v. Schluneger , 3 Wn. App. 536 , 475 P.2d 916 (1970). In these cases, alternatives were proffered by the property owner, but the condemning agency rebutted the testimony. Sound Transit's failure to offer rebutting evidence here contrasts sharply.
«19» See majority at 421 ("[I]t is not the role of the court to take a second look at the various environmental considerations at issue. As long as Sound Transit considered the environmental impacts, it is not for the court to substitute its judgment in the absence of some demonstration of fraud or arbitrary and capricious conduct.").
440 Cent. Puget Sound Reg'l Transit Auth. v. Miller Feb. 2006
156 Wn.2d 403
¶93 Sound Transit's errors of commission and omission are reflected in the trial court's conclusion that: "[Sound Transit] may have negligently omitted and missed some facts and evidence which ideally should have been considered, and if considered could have reasonably led to a different result." CP at 252 (Conclusion of Law 12). Nonetheless, the trial court concluded that such "error" was not fatal. Id . The trial court's conclusion is inconsistent with the relevant legal standard, and I would reverse. Deference of the courts to agency decisions which are procedurally flawed and based on facts known to be false diminishes public confidence in government and in the courts.
IV. CONCLUSION
¶94 In this case, "posting" on the web site did not necessarily furnish notice either to the owner or to the public. By upholding Sound Transit's taking of private property through a process admittedly lacking proper notice and based upon erroneous factual information, the majority utilizes a standard of review that is contrary to our constitution.
¶95 Article I, section 16's express declaration that the taking of private property for public use is a judicial question "without regard to any legislative assertion," is undermined by the majority's decision. The right of owners - and the public - to full and fair consideration before private property is taken is eroded.
¶96 I dissent.
SANDERS, J., concurs with J.M. JOHNSON, J. CHAMBERS, J., concurs in the result only.
Feb. 2006 Cent. Puget Sound Reg'l Transit Auth. v. Miller 441
156 Wn.2d 403