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FABRE-VS-TOWN-OF-RUSTON-RULING-21

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 6                    IN THE SUPERIOR COURT OF WASHINGTON, COUNTY OF PIERCE

 7   STEVE FABRE,                                             Cause No: 08-2-10459-7

 8                    Plaintiff(s) ,                          RULING

 9          vs.

10   TOWN OF RUSTON,
                Defendant(s) .
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12          THIS COURT HEREBY DECLARES that Ordinance 1253 amending Ruston Municipal Code

13   (RMC) § 5.02.020(k) was improperly enacted and is therefore VOID.

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                                                    FINDINGS OF FACT
15          The Court adopts the facts stipulated to by the parties which are incorporated herein by

16   reference.

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                                                  CONCLUSIONS OF LAW
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            1. The Ruston Town Counsel failed to comply with its municipal code and its Rules of
19                Procedure when it enacted Ordinance 1253.

20          2. Ruston Municipal Code 1.16.060(d) defines “law” which when appropriate, includes any and
                  all rules and regulations promulgated thereunder. RMC 1.16.060(d).
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            3. Ruston Municipal Code 1.16.060(9) defines “ordinance” as a law of the town and provides
22                that administrative actions may be in the form of a resolution. RMC 1.16.060(9).

23          4. Provisions of the Ruston Municipal Code and all proceedings under it are to be construed
                  with a view to effect its objects and to promote justice. RMC 1.16.090.
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            5. Rule 22 of the Ruston Town Council Rules of Procedure adopted April 1, 2008 provides in
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                  relevant part that an ordinance may be put to its final passage on the same day on which it
 1       was introduced by a vote of one more than the majority of the members of the council. The
         term “majority” is not defined in the Rules of Procedure. The dictionary definition of “majority”
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         is “a number greater than half of a total”, Webster’s Dictionary. In this case, the Ruston Town
 3       Council has five (5) members; therefore, a majority is three members. A majority plus one

 4       would require a vote of four (4) members of the Council.
     6. The plain language of Rule 22(A) is clear. It requires a majority of the members of the
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         Council plus one to pass an ordinance on the same day on which it was introduced. If, as
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         defendants argue, the rule required a majority of the Council members “present” plus one to
 7       pass Ordinance 1253; four votes would still be required since three votes would be greater

 8       than half the total. Thus a majority plus one would require four votes under either
         interpretation of the rule.
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     7. In this case only three members of the Council voted for consider final passage of Ordinance
10       1253 on the same day it was introduced. Therefore, the Ordinance was not properly enacted

11       pursuant to the Council’s Rules of Procedure Rule 22(A).
     8. An improperly enacted ordinance is void. Swartout vs. City of Spokane, 21 Wn.App.665,
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         673, 586 P2d 135 (1978). (Citing, Tennent vs. Seattle, 83 Wash. 108 (1914); Savage vs.
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         Tacoma, 61 Wash. 1, (1910).
14   9. There is no evidence the Council’s rules were suspended or otherwise amended prior to the

15       vote on Ordinance 1253. Therefore, the Ordinance is void.
     10. Since Ordinance 1253 was not properly enacted, this Court does not consider whether the
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         Ordinance was void for vagueness due to the lack of an effective date. The Court also does
17       not consider whether the tax proposed to be enacted through Ordinance 1253 complied with

18       the intent of the Washington State Gambling Statute RCW 9.46.110 et seq.
     11. Defendant’s counterclaims are dismissed with prejudice. The Town of Ruston’s
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         counterclaims do not constitute a SLAPP suit under Washington law.
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     12. Plaintiff’s request for attorney fees is DENIED.
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22   DATED this 26th day of May, 2010.

                                                       ____________________________
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                                                       JUDGE FRANK CUTHBERTSON
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