REPLY IN SUPPORT OF WSDCCS MOTION TO DISMISS FOR IMPROPER VENUE by ert634

VIEWS: 16 PAGES: 20

									 2
 3
 4
 5
 6
 7
 8
 9
10
11                                                        THE HONORABLE JOHN E. BRIDGES
12                                                                              Noted for Hearing
13                                                             Friday, February 4, 2005, 9:00 a.m.
14
15
16
17
18
19                       SUPERIOR COURT OF THE STATE OF WASHINGTON
20                                  FOR CHELAN COUNTY
21
22   Timothy Borders et al.,
23                                                        NO. 05-2-00027-3
24                               Petitioners,
25                                                        REPLY IN SUPPORT OF
26            v.                                          WASHINGTON STATE DEMOCRATIC
27                                                        CENTRAL COMMITTEE'S MOTION
28   King County et al.,
29
                                                          TO DISMISS FOR IMPROPER VENUE
30                                                        OR, IN THE ALTERNATIVE, TO
31
                                 Respondents,             TRANSFER VENUE
32
33
34   and
35
36
37   Washington State Democratic Central
38   Committee,
39
40
41                               Intervenor-Respondent.
42
43
44
45
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                      Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                           1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                        Seattle, Washington 98101-3099
     TRANSFER VENUE                                                               Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051
                                                                                   Fax: (206) 359-9000
                                                             CONTENTS
 2
 3   I.       SUMMARY OF ARGUMENT.....................................................................................1
 4
 5   II.      ARGUMENT AND AUTHORITY...............................................................................2
 6
 7            A.        Election Contests Are "Sui Generis" and RCW 29A.68 et seq., Not
 8                      the Generally Applicable Venue Statutes, Governs Venue in Election
 9
10
                        Contests..............................................................................................................2
11
12            B.        Under RCW 29A.68 et seq., the Washington Supreme Court Is "the
13                      Appropriate Court" to Hear This Contest. .........................................................4
14
15                      1.         This Contest Challenges a Statewide Official and Names as
16                                 Respondents Every County and Chief County Election
17                                 Official in the State, Among Others. .....................................................5
18
19
                        2.         This Contest Has No Viable Connection to Chelan County..................6
20
21
22
                        3.         Petitioners' Requested Special Election for Governor Should
23                                 Not Be Ordered by a Single Judge in a Single County..........................9
24
25                      4.         The Washington Supreme Court Could Consolidate the
26                                 Pending Election Contests. ....................................................................9
27
28                      5.         The Washington Supreme Court Can Provide for Any Fact
29                                 Finding That It Finds Necessary..........................................................11
30
31
              C.        Even if This Court Is an "Appropriate" Court for This Contest, the
32
33                      Court Should Transfer This Contest to the Washington Supreme
34                      Court. ...............................................................................................................12
35
36            D.        In the Alternative, This Court Should Transfer This Contest to
37                      Thurston County Superior Court. ....................................................................13
38
39   III.     CONCLUSION............................................................................................................16
40
41
42
43
44
45
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                                                   Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                                        1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                                                     Seattle, Washington 98101-3099
     TRANSFER VENUE - ii                                                                                       Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051
                                                                                                                Fax: (206) 359-9000
                                                   TABLE OF AUTHORITIES
 2
 3   Cases
 4
 5
     ATU Legislative Council v. State, 145 Wn.2d 544 (2002) .................................................... 15
 6
 7
 8
     Becker v. County of Pierce, 126 Wn.2d 11 (1995).............................................................. 3, 6
 9
10   City of Tacoma v. O'Brien, 85 Wn.2d 266 (1975)................................................................. 11
11
12   Clampitt v. Thurston County, 98 Wn.2d 638 (1983) ....................................................... 12, 13
13
14   Cothern v. King County Election Canvassing Bd., 86 Wn.2d 40 (1975) ................................ 8
15
16   Dougherty v. Dep't of Labor & Indus., 150 Wn.2d 310 (2003) .............................................. 4
17
18   Judd v. Am. Tel. & Tel. Co., 152 Wn.2d 195 (2004) ............................................................... 4
19
20
     Malinowski v. Tilley, 147 Wash. 405 (1928) ........................................................................... 3
21
22
23   McDonald v. Sec'y of State, 103 P.3d 722 (Wash. 2004) .......................................... 7, 8, 9, 13
24
25   Pub. Util. Dist. No. 1 v. Wash. Pub. Power Supply Sys., 104 Wn.2d 353
26     (1985)............................................................................................................................... 4, 5
27
28   Quigley v. Phelps, 74 Wash. 73 (1913) ................................................................................... 3
29
30   State ex re. Blackman v. Superior Court, 82 Wash. 134 (1914).............................................. 8
31
32   State ex rel. Mills v. Beeler, 149 Wash. 473 (1928) ........................................................ 3, 8, 9
33
34
35
     State ex rel. Mills v. Howell, 93 Wash. 257 (1916) ................................................................. 8
36
37   State ex rel. Ransom v. McPherson, 128 Wash. 265 (1924) ................................................... 3
38
39   State v. Goldberg, 149 Wn.2d 888 (2003)............................................................................. 10
40
41   Whitten v. Silverman, 105 Wash. 238 (1919) .......................................................................... 3
42
43
     Statutes
44
45
46   RCW 4.12.030 ................................................................................................................. 12, 13
47


     REPLY IN SUPPORT OF WSDCC'S                                                                                      Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                                           1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                                                        Seattle, Washington 98101-3099
     TRANSFER VENUE - iii                                                                                         Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051
                                                                                                                   Fax: (206) 359-9000
     RCW 29A.68 ........................................................................................................................... 4
 2
 3   RCW 29A.68.011 .......................................................................................................... 3, 8, 12
 4
 5
     RCW 29A.68.020 .............................................................................................................. 6, 11
 6
 7
 8
     RCW 29A.68.030 ................................................................................................................ 3, 8
 9
10   RCW 29A.68.040 .................................................................................................................... 3
11
12   RCW 29A.68.100 .................................................................................................................. 14
13
14   Rules
15
16
17
     CR 12(b)(3).............................................................................................................................. 2
18
19   RAP 16.2(d)........................................................................................................................... 12
20
21   Constitutional Provisions
22
23   WASH. CONST. art. III, § 4 ....................................................................................................... 4
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                                                     Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                                          1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                                                       Seattle, Washington 98101-3099
     TRANSFER VENUE - iv                                                                                         Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051
                                                                                                                  Fax: (206) 359-9000
 1
 2                                      I.   SUMMARY OF ARGUMENT
 3
 4            Election contests, by the plain terms of the very statute invoked by Petitioners, must
 5
 6   be filed in "the appropriate court." This case, involving constitutional issues of first
 7
 8   impression likely to be ultimately determined by the Supreme Court, and naming every one
 9
10   of the State's counties, their chief election officials, and numerous statewide officials, was
11
12   not properly filed in this Court and should be transferred to the Supreme Court. There are
13
14   no allegations involving Chelan County or its auditor that can withstand even the most
15
16   cursory review – a point that Petitioners concede by the deafening silence on the point in
17
18   their opposition.
19
20            Moreover, a transfer to the one court that can conclusively and definitively resolve
21
22   these questions will almost certainly expedite the ultimate resolution of this case. Indeed,
23
24   such a transfer serves the public interest in expediting the ultimate resolution of the case,
25
26   conserving judicial resources, and avoiding costly and burdensome discovery on the cash-
27
28   strapped counties of this State, much of which will likely be rendered pointless and
29
30   irrelevant once the legal standards are definitively settled by the Supreme Court. Indeed,
31
32   had Petitioners filed in the Supreme Court to begin with, this contest (and the others
33
34   currently pending there) could have been concluded, or substantially narrowed, by now.
35
36   Continued delay, as well as the campaign of distorted, unfair, and unsupported allegations of
37
38   official misconduct being waged by Petitioners and their supporters, creates a high risk of
39
40   potent and serious damage to public confidence in our political and electoral system.
41
42            Rather than confront the statutory terms requiring election contests to be filed in "the
43
44   appropriate court" or the compelling public interest that would be served by transfer to the
45
46   Supreme Court, Petitioners instead accuse Intervenor-Respondent WSDCC ("WSDCC") of
47


     REPLY IN SUPPORT OF WSDCC'S                                                       Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                            1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                         Seattle, Washington 98101-3099
     TRANSFER VENUE - 1                                                            Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                    Fax: (206) 359-9000
 1   trying to "delay" or "frustrate" the resolution of this "historic" election contest. Opposition
 2
 3   to WSDCC's Motion to Dismiss for Improper Venue ("Opposition") at 1, 6, 10. This
 4
 5   litigation, however, is not a political campaign, and challenging the motives of one's
 6
 7   opponent is a thin substitute for legal reasoning. Neither WSDCC, nor the many counties
 8
 9   that have challenged venue, seek to delay the resolution of the contest; far from it, they seek
10
11   immediate disposition of this case without further ado on several grounds. But in the event
12
13   that any portion of this case survives, WSDCC respectfully submits that it should be
14
15   transferred to the Supreme Court or, alternatively, to Thurston County.1
16
17                                      II.   ARGUMENT AND AUTHORITY
18
19   A.       Election Contests Are "Sui Generis" and RCW 29A.68 et seq., Not the
20            Generally Applicable Venue Statutes, Governs Venue in Election
21            Contests.
22
23            Election contests are "sui generis," as even Petitioners concede. Petitioners'
24
25   Combined Memorandum in Opposition to County/Auditor Motions to Dismiss at 2.
26
27   Election contests rest upon and are wholly defined by the statutory authority provided by the
28
29   Legislature – a point that our Supreme Court has repeatedly emphasized in cases spanning
30
31
32
33
34
              1WSDCC properly challenged venue at the outset of this contest, before any proceedings of
35
36   substance occurred. See CR 12(b)(3). Thus, Petitioners and the Secretary of State are incorrect
37   when they argue that this contest should remain in Chelan County because it "is already well
38   underway," Opposition at 1, and therefore "judicial economy" would be served by keeping it here,
39   Secretary of State's Response to WSDCC's Motion to Dismiss for Improper Venue or, in the
40   Alternative, to Transfer Venue ("Response") at 2. Indeed, the suggestion that a properly made venue
41   challenge should be rejected on the grounds that the case has been pending for all of three weeks
42   with nothing more than procedural rulings to date, is more than a little startling. Economy – not only
43   conservation of judicial resources, but also conservation of precious and overburdened county
44   resources – is served by transfer to the Supreme Court for definitive rulings, not further costly
45   discovery and delayed resolution of those issues. To the extent that any portion of the contest
46   survives such review (a doubtful proposition, to say the least), it is likely to be a shadow of the
47   current sweeping election contest, far more susceptible to rapid resolution.

     REPLY IN SUPPORT OF WSDCC'S                                                          Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                               1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                            Seattle, Washington 98101-3099
     TRANSFER VENUE - 2                                                               Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                       Fax: (206) 359-9000
 1   nearly a century. See, e.g., Becker v. County of Pierce, 126 Wn.2d 11, 18 (1995) ("Early
 2
 3   this century we clearly established that the right to contest an election 'rests solely upon, and
 4
 5   is limited by, the provisions of the statute relative thereto.'") (quoting Quigley v. Phelps, 74
 6
 7   Wash. 73, 75 (1913)); Malinowski v. Tilley, 147 Wash. 405, 407 (1928) ("[T]he right to hear
 8
 9   and determine an election contest is not ordinarily a judicial function of the courts, and can
10
11   be exercised by them only when and to the extent which the right is conferred by statute.");
12
13   State ex rel. Mills v. Beeler, 149 Wash. 473, 475 (1928) (rejecting late-filed affidavit in
14
15   support of election contest and stating that "[t]he court has no inherent jurisdiction to hear
16
17   election contests, and such a proceeding is not according to the course of the common law.
18
19   The right of the court to hear and determine such a matter if it exists must be found in the
20
21   statute. Beyond the power given by the statute the court has no jurisdiction in election
22
23   contests") (citing Whitten v. Silverman, 105 Wash. 238 (1919); State ex rel. Ransom v.
24
25   McPherson, 128 Wash. 265 (1924); Malinowski, 147 Wash. 405). While Petitioners rely on
26
27   the sui generis nature of election contests when it assists them, they ignore the implications
28
29   of that rule for the venue of this action.
30
31            To begin with, the Legislature chose to specify – repeatedly – that election contests
32
33   must proceed in "the appropriate court."2 This phrase must be given meaning. Courts
34
35
36
37
              2 RCW 29A.68.011 begins by providing that a justice of the Supreme Court, a judge of the
38
39   Court of Appeals, or a judge of the superior court of the "proper" county may order relief against an
40   official in an election action. It then provides, in its last paragraph, that the affidavit of the elector
41   that initiates the action must be filed "with the appropriate court." In two other instances, the statutes
42   that prescribe the procedure for election contests refer to "the appropriate court." RCW 29A.68.030
43   dictates the time for filing and the required contents of the affidavit of the elector that begins the
44   contest, and it states that the affidavit "must be filed with the appropriate court." RCW 29A.68.040
45   sets forth the procedures the court and court clerk follow after an elector has initiated a contest, and it
46   states that "[u]pon such affidavit being filed, the clerk shall inform the judge of the appropriate
47   court."

     REPLY IN SUPPORT OF WSDCC'S                                                             Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                  1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                               Seattle, Washington 98101-3099
     TRANSFER VENUE - 3                                                                  Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                          Fax: (206) 359-9000
 1   should construe statutes to give effect to each word. See Judd v. Am. Tel. & Tel. Co., 152
 2
 3   Wn.2d 195, 202-03 (2004) ("[S]tatutes must be interpreted and construed so that all the
 4
 5   language used is given effect, with no portion rendered meaningless or superfluous.")
 6
 7   (internal quotation marks omitted). If the Legislature merely wanted the generally
 8
 9   applicable venue statutes to govern election contests, it would have had no need to state,
10
11   repeatedly, that election contests should proceed in "the appropriate court." Read as a
12
13   whole, RCW 29A.68 et seq. vests concurrent jurisdiction to hear some election contests in
14
15   all three levels of courts,3 but through the word "appropriate," provides that in each instance
16
17   the proper venue of a contest is more limited. See generally Dougherty v. Dep't of Labor &
18
19   Indus., 150 Wn.2d 310, 316 (2003) (explaining that jurisdiction refers to a court's power to
20
21   hear a case whereas venue refers to the proper location for the case to be heard).4
22
23   B.       Under RCW 29A.68 et seq., the Washington Supreme Court Is "the
24            Appropriate Court" to Hear This Contest.
25
26            The election statutes do not themselves define what makes a court "the appropriate
27
28   court" for a given action. The Court, therefore, has the duty to decide if Chelan County
29
30   Superior Court is "the appropriate court" for this contest in light of the statutes' subject
31
32   matter, context, and purpose. See Pub. Util. Dist. No. 1 v. Wash. Pub. Power Supply Sys.,
33
34
35
36
              3 As set forth in WSDCC's separate motion, no court has jurisdiction to hear a contest of a
37
38   statewide office because of Article III, § 4 of the Washington Constitution. But if this Court
39   determines that such election contests may be "decided by" the Judiciary and that the Judiciary has
40   jurisdiction, then there is only one "appropriate court" for such an action and, in the context of the
41   specific allegations raised in this election contest, that is either the Supreme Court or Thurston
42   County Superior Court.
43
44            4This motion concerns venue, not jurisdiction. Thus, on this motion WSDCC does not
45   argue that this Court lacks the power to act, as Petitioners and the Secretary of State mistakenly
46   suggest. Opposition at 5, 6; Response at 2. The issue here is whether venue is proper in this Court
47   and, even if so, whether another court would be a better forum.

     REPLY IN SUPPORT OF WSDCC'S                                                            Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                 1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                              Seattle, Washington 98101-3099
     TRANSFER VENUE - 4                                                                 Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                         Fax: (206) 359-9000
 1   104 Wn.2d 353, 369 (1985) ("In determining the meaning of words used but not defined in a
 2
 3   statute, a court must give careful consideration to the subject matter involved, the context in
 4
 5   which the words are used, and the purpose of the statute.") (internal quotation marks and
 6
 7   citation omitted). Considered in this light, the factors WSDCC has identified in this motion
 8
 9   establish that the Washington Supreme Court, not this Court, is the only court that can be
10
11   considered "the appropriate court" for this contest.5
12
13            1.        This Contest Challenges a Statewide Official and Names as
14                      Respondents Every County and Chief County Election Official in
15                      the State, Among Others.
16
17            Petitioners do not disagree that this contest concerns a statewide executive office or
18
19   that they filed suit against a statewide executive official and each county of the State and
20
21   each county's chief election official. Petitioners contend that these factors are irrelevant to
22
23   the issue of venue, primarily because neither the election contest statutes nor case law
24
25   specifically states that superior courts cannot hear such contests. Opposition at 3, 4. As
26
27   noted in WSDCC's motion, the lack of specific statutory guidance or case law on this point
28
29   is not surprising, given that the Washington Constitution requires election contests of
30
31   statewide executive officers to be brought in the Legislature and that no prior case in
32
33
34
35
              5 Assuming that any court has jurisdiction to hear this matter, the Supreme Court
36
37   undisputedly would have original jurisdiction to do so and venue would also be proper in the
38   Supreme Court. Thus, Petitioners' concern that if this motion is granted, "venue would not be
39   available anywhere with respect to the entire case and all defendants," Opposition at 3; see also
40   Response at 2, is simply wrong. Venue in the Supreme Court or Thurston County is more
41   appropriate not only on account of the specific allegations, but also because the Petition involves a
42   claim against the State's chief election officer, which even the Secretary of State concedes must
43   "ordinarily" be filed in Thurston County "where his office is located and where official acts are
44   performed." Response at 2. If this action challenges the issuance of the certificate of election (as
45   Petitioners insist in response to the counties' motions to dismiss) and the statute of limitations must
46   be measured from the date of the issuance of the certificate of election, then those Thurston County
47   transactions must also be the measure of the appropriate venue.

     REPLY IN SUPPORT OF WSDCC'S                                                            Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                 1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                              Seattle, Washington 98101-3099
     TRANSFER VENUE - 5                                                                 Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                         Fax: (206) 359-9000
 1   Washington history has presented this precise issue.6 WSDCC's Motion to Dismiss for
 2
 3   Improper Venue or, in the Alternative, to Transfer Venue ("Motion") at 5 n.2. The statewide
 4
 5   aspects of this contest, however, especially when considered in light of the other factors
 6
 7   WSDCC identifies, establish that only the Supreme Court is "the appropriate court" for this
 8
 9   contest.
10
11            2.        This Contest Has No Viable Connection to Chelan County.
12
13            Petitioners assert that venue is proper in Chelan County because "Chelan County and
14
15   some of its officials are among the defendants." Opposition at 1. Aside from this passing
16
17   wave of the hand, Petitioners do not even attempt to seriously prosecute any claim against
18
19   Chelan County or its auditor, much less respond to the specific and fatal flaws in the only
20
21   claims asserted that were noted in WSDCC's motion. Their silent concession is telling.
22
23            In fact, although Chelan County and its auditor (Evelyn L. Arnold) are nominally
24
25   involved in this contest as Respondents, Petitioners have identified no viable factual,
26
27   substantive connection to Chelan County. The only allegation related to Chelan County is
28
29   that the Chelan County canvassing board did not reconsider, after it had certified the manual
30
31   recount, its decision to reject Thomas E. Canterbury's absentee ballot for signature reasons.
32
33   See Affidavit of Thomas E. Canterbury in Support of Election Contest Petition ("Canterbury
34
35   Aff."); Affidavit of Fredi Simpson in Support of Election Contest Petition ("Simpson Aff.")
36
37   (describing attempt to present Mr. Canterbury's affidavit to the canvassing board). This
38
39   allegation plainly is not grounds for an election contest. See RCW 29A.68.020
40
41
42
43
44            6Becker v. County of Pierce, 126 Wn.2d 11 (1995), concerned the primary election of a
45   statewide officer, but whether venue was proper was not addressed, most likely because the
46   allegations in that case related to only one county and to the actions of the candidate in his capacity
47   as county auditor.

     REPLY IN SUPPORT OF WSDCC'S                                                            Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                 1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                              Seattle, Washington 98101-3099
     TRANSFER VENUE - 6                                                                 Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                         Fax: (206) 359-9000
 1   (enumerating five grounds for an election contest, none of which relate to such an
 2
 3   allegation).
 4
 5            Further, the canvassing board's acts do not constitute any type of cognizable error.
 6
 7   This precise type of claim was considered and emphatically rejected by the Washington
 8
 9   Supreme Court in earlier litigation concerning this very election. On November 17, 2004,
10
11   WSDCC presented the affidavits of 24 voters whose signatures had been previously rejected
12
13   to the King County canvassing board. See McDonald v. Sec'y of State, 103 P.3d 722, 723
14
15   (Wash. 2004). When the canvassing board rejected those affidavits because they had been
16
17   submitted after the county's initial certification of the election results, WSDCC challenged
18
19   that decision (among other things) in an original action filed in the Supreme Court. See id.
20
21   Far from embracing the position it now advances, the Washington State Republican Party –
22
23   the apparent backer of Petitioners in this action – intervened in that action and opposed the
24
25   reconsideration of those ballots.7 See Supplemental Declaration of William C. Rava in
26
27   Support of WSDCC's Motions to Dismiss ("Rava Decl.") ¶ 2, Ex. A. The Court
28
29   unanimously rejected WSDCC's argument that counties should have accepted affidavits
30
31   from voters attempting to correct signature problems after certification. See McDonald, 103
32
33   P.3d at 723. The Canterbury affidavit was not even submitted to the Chelan County
34
35   canvassing board until December 23, 2004, Simpson Aff. ¶ 3, long after even Chelan
36
37   County's final certification of the Chelan County results, Rava Decl. ¶ 7, Ex. F, and after the
38
39   decision in McDonald on December 14, 2004. As a result, the claim is squarely foreclosed
40
41   and its assertion here has utterly no foundation and borders on frivolous in light of the clear
42
43
44
45
46            7Indeed, the Washington State Republican Party indignantly insisted that to consider such
47   affidavits would constitute "chang[ing] the rules" of the election. Rava Decl. ¶ 2, Ex. A at 1, 10.

     REPLY IN SUPPORT OF WSDCC'S                                                         Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                              1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                           Seattle, Washington 98101-3099
     TRANSFER VENUE - 7                                                              Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                      Fax: (206) 359-9000
 1   and unanimous decision in McDonald. It certainly provides precious little support for a
 2
 3   claim that venue is proper in this county (and, perhaps for this reason, Petitioners do not
 4
 5   even attempt to defend the proposition).
 6
 7            Finally, the sole affidavit upon which the claim is based is, in any event, untimely.
 8
 9   Affidavits supporting election contests must be filed within ten days of the "issuance of the
10
11   certificate of election." RCW 29A.68.011. In this case, the Secretary of State's certification
12
13   of the election occurred on December 30, 2004. Mr. Canterbury's (legally insufficient)
14
15   affidavit was not filed until January 18, 2005. It is therefore untimely and cannot be
16
17   considered. See Beeler, 149 Wash. at 475-76 (rejecting as untimely supplemental affidavit
18
19   filed in support of election contest after deadline defined by statute and noting that "[t]he
20
21   court had no jurisdiction to hear and determine the new grounds of contest set out in the
22
23   supplemental affidavit because the provisions of the statute are jurisdictional").8
24
25            Petitioners' lack of any viable evidence or allegations specific to Chelan County has,
26
27   of course, profound implications for venue in this action. An election contest does not begin
28
29   with a notice pleading complaint. An elector initiates an election contest by filing an
30
31   affidavit that alleges the "particular causes of the contest" with "sufficient certainty."
32
33   RCW 29A.68.030; see also RCW 29A.68.011. As the Court held in Beeler, these
34
35   requirements are specific, demanding, and jurisdictional. And they cannot be remedied by
36
37   after-the-fact supplemental affidavits seeking to supply what the original affidavit did not.
38
39
40
41            8 For nearly a century, the Washington Supreme Court has consistently enforced the
42   deadlines in election contest and related statutes. See, e.g., Cothern v. King County Election
43   Canvassing Bd., 86 Wn.2d 40, 44 (1975) (dismissing appeal not filed in compliance with time
44   limitations for appeal specified in election statutes); State ex rel. Mills v. Howell, 93 Wash. 257, 260
45   (1916) (rejecting action brought under primary election error-correction statute because untimely
46   filed); State ex re. Blackman v. Superior Court, 82 Wash. 134, 136 (1914) (rejecting writ petition
47   because not filed within 10-day period for appeal specified in election statutes).

     REPLY IN SUPPORT OF WSDCC'S                                                            Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                 1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                              Seattle, Washington 98101-3099
     TRANSFER VENUE - 8                                                                 Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                         Fax: (206) 359-9000
 1   See Beeler, 149 Wash. at 475-76. But once Mr. Canterbury's allegations fall from this case
 2
 3   as squarely foreclosed by McDonald, or as an untimely effort to supplement the original
 4
 5   affidavit (thus barred by Beeler), there is no remaining connection to Chelan County.9
 6
 7            3.        Petitioners' Requested Special Election for Governor Should Not
 8                      Be Ordered by a Single Judge in a Single County.
 9
10            Petitioners' only discussion of the statewide implications of the extraordinary remedy
11
12   they seek, a new special election for Governor, is the statement, without citation, that
13
14   superior courts have the "power to grant whatever relief may appear appropriate."
15
16   Opposition at 5. Perhaps. (Although, for the reasons stated elsewhere, neither this nor any
17
18   other Court has the constitutional authority to order the new special election sought by
19
20   Petitioners). But – for purposes of this motion – Petitioners nowhere dispute that the
21
22   remedy they seek would impact voters and taxpayers across the entire State. This Court
23
24   should not assume that responsibility in the context of this case.10
25
26            4.        The Washington Supreme Court Could Consolidate the Pending
27                      Election Contests.
28
29            If this contest were proceeding before the Supreme Court, that Court could
30
31   consolidate this contest with those already pending before it. The Supreme Court's ability to
32
33
34
35
              9 Petitioners suggest that WSDCC brings this motion in order to "move the case to a forum
36
37   that [WSDCC] apparently perceives as potentially more favorable to it." Opposition at 1. The
38   argument (another in a series of challenges to the motives of WSDCC in an apparent effort to
39   disparage the motives of any party who challenges the jurisdiction or venue of this action), is more
40   than a little ironic, given the rather glaring absence of any viable connection to Chelan County other
41   than Petitioners' own desire to select the forum for what they baldly admit are "political" reasons.
42   See Rava Decl. ¶ 3, Ex. B.
43
44            10See also Benton County and Benton County Auditor Bobbie Gagner’s Response to
45   Petitioners' Combined Opposition to Motions of Benton County and Benton County Auditors'
46   Motion to Dismiss at 4 (arguing that the Court has no power to order a county to hold a new
47   election).

     REPLY IN SUPPORT OF WSDCC'S                                                          Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                               1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                            Seattle, Washington 98101-3099
     TRANSFER VENUE - 9                                                               Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                       Fax: (206) 359-9000
 1   consolidate all the contests is another factor indicating that the Supreme Court, rather than
 2
 3   this Court, is the "appropriate" court for this contest. All the contests would be parallel
 4
 5   election contests over which the Supreme Court has original jurisdiction and therefore it
 6
 7   would have the power to consolidate them. Cf. State v. Goldberg, 149 Wn.2d 888, 892
 8
 9   (2003) (noting that the Court of Appeals consolidated three personal restraint petitions, over
10
11   which it had original jurisdiction).
12
13            Further, notwithstanding Petitioners' attempts to denigrate the other contests for
14
15   being filed by pro se Petitioners who thus far have not sought discovery, Opposition at 9,
16
17   legally all the contests stand on the same footing. Indeed, two actions pending in the
18
19   Supreme Court were filed before the contest at hand. The voters who filed the other contests
20
21   are electors of this State, as are Petitioners (except for the Rossi campaign itself).
22
23   Petitioners may have the backing of financial interests that can retain large law firms and
24
25   carpet the state with indiscriminate, expensive, and burdensome discovery, but that hardly is
26
27   a point in favor of this overburdened litigation. Nor does it suggest that expeditious
28
29   resolution of the dispute is likely when pursued in such a manner.
30
31            More important, Petitioners' litigation preferences are entirely irrelevant to the
32
33   legitimacy of the other pending election contests filed in the Supreme Court and elsewhere.
34
35   Thus, unless this contest is re-filed upon dismissal or transferred to the Supreme Court, the
36
37   possibility remains that the different contests will proceed on multiple fronts. As the
38
39   Secretary of State points out: "The fact that this case involves a single statewide election as
40
41   to which a single statewide standard must be applied to the facts also supports the
42
43   conclusion that the matter should not be permitted to proceed piecemeal in multiple
44
45   counties." Response at 2. Exactly so. And the point is particularly crucial where, as here,
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                       Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                            1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                         Seattle, Washington 98101-3099
     TRANSFER VENUE - 10                                                           Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                    Fax: (206) 359-9000
 1   other actions are already pending in the Supreme Court (a point the Secretary of State fails
 2
 3   to address). For precisely this reason, the action should be transferred to the Supreme Court.
 4
 5            5.        The Washington Supreme Court Can Provide for Any Fact
 6                      Finding That It Finds Necessary.
 7
 8            That the Supreme Court does not sit as a trial court is no bar to it exercising its
 9
10   original jurisdiction over this matter. Indeed, the same objection could be raised as to every
11
12   case falling within the Court's original jurisdiction. It is particularly inapplicable here.
13
14            First, no fact finding is likely to be necessary. From the Petition and supporting
15
16   affidavits it appears that this contest should be disposed of on purely legal, rather than
17
18   factual, grounds.11 It is proper and appropriate for the Supreme Court to exercise original
19
20   jurisdiction to resolve legal questions of broad public significance, and through the exercise
21
22   of original jurisdiction it can do so in a more expedient fashion than would occur through
23
24   the normal appellate process. Cf. City of Tacoma v. O'Brien, 85 Wn.2d 266, 268 (1975)
25
26   (mandamus action). Transferring this action to the Supreme Court is likely to accelerate
27
28   final resolution of this matter, not delay it.
29
30            Moreover, if fact finding is necessary, it would be far more expeditious and efficient
31
32   to conduct that fact finding after the standards are definitively resolved by the Supreme
33
34   Court, rather than to burden the counties (and through them, the taxpayers of this State) with
35
36   broad ranging and burdensome discovery on issues that are likely to be held entirely
37
38   irrelevant. And, through a special master or referral to a superior court the Supreme Court
39
40
41
42
43            11Petitioners do not intend to prove that the errors they allege actually changed the outcome
44   of the election and they do not intend to provide a supportable legal basis for granting the relief they
45   seek. Moreover, virtually all of their alleged errors relate to the issuance of ballots to improperly
46   registered voters. These allegation do not, as a matter of law, suffice because Petitioners failed to
47   timely challenge the voters' registrations as required by RCW 29A.68.020(5)(b).

     REPLY IN SUPPORT OF WSDCC'S                                                            Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                 1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                              Seattle, Washington 98101-3099
     TRANSFER VENUE - 11                                                                Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                         Fax: (206) 359-9000
 1   could easily resolve whatever narrow factual questions are left after the legal questions in
 2
 3   this contest are resolved. See, e.g., RAP 16.2(d). This Court itself has indicated that a
 4
 5   special master could be of benefit in this matter. See Mins. of Jan. 20, 2005 hearing at 6.
 6
 7   The Supreme Court's final and definitive resolution of the threshold legal issues at this stage,
 8
 9   plus any fact-finding that remains, will not take longer than completing the entire contest in
10
11   this Court, having a record for appeal prepared, briefing and arguing the appeal, and having
12
13   the Court issue a decision on appeal. In fact, it seems more likely that proceeding in the
14
15   Supreme Court in the first instance will be the fastest way to obtain a resolution of these
16
17   issues for the people of this State.
18
19   C.       Even if This Court Is an "Appropriate" Court for This Contest, the
20            Court Should Transfer This Contest to the Washington Supreme Court.
21
22            For all the reasons stated above, this Court is not "the appropriate court" for this
23
24   contest, and the Washington Supreme Court is. Accordingly, the Court should either
25
26   dismiss this contest for improper venue or transfer it to the Supreme Court. But even if this
27
28   Court determines that the election contest statute contemplates multiple "appropriate" courts
29
30   for venue and that this Court is an appropriate court, the same factors establish that the
31
32   Court should transfer this contest to the Supreme Court under RCW 4.12.030 to serve the
33
34   ends of justice. See Clampitt v. Thurston County, 98 Wn.2d 638, 647 (1983) (stating that
35
36   "[c]oncerns for judicial economy and inter court comity come within this criterion").
37
38            Petitioners suggest that this Court lacks the ability to transfer this contest to the
39
40   Supreme Court. Opposition at 8. Ordinarily a superior court could not transfer an action to
41
42   the Supreme Court, because the Supreme Court does not sit as a trial court. But actions
43
44   brought pursuant to RCW 29A.68.011 (whether subsections (1)-(5) or the contest
45
46   subsection (6)) can be initiated in the Supreme Court, as recently confirmed by McDonald v.
47


     REPLY IN SUPPORT OF WSDCC'S                                                         Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                              1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                           Seattle, Washington 98101-3099
     TRANSFER VENUE - 12                                                             Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                      Fax: (206) 359-9000
 1   Secretary of State. RCW 4.12.030, the venue transfer statute, accordingly gives the Court
 2
 3   authority to transfer this action to the Supreme Court. That this statute refers to "chang[ing]
 4
 5   the place of trial" is no bar, since the Supreme Court has explained that the statute applies to
 6
 7   entire proceedings of many varieties. See Clampitt, 98 Wn.2d at 647 n.6 (stating that the
 8
 9   phrase "place of trial" in RCW 4.12.030 "must mean place of 'action or proceeding'" and
10
11   citing different types of proceedings that have been transferred under the authority of this
12
13   statute). Accordingly, a transfer to the Supreme Court would no more constitute an
14
15   impermissible attempt by this Court to "manage" or "set" the Supreme Court's docket,
16
17   Opposition at 8, than would any other routine venue transfer granted by superior courts
18
19   every day (or the filing of an original action, for that matter).
20
21   D.       In the Alternative, This Court Should Transfer This Contest to Thurston
22            County Superior Court.
23
24            Venue transfers under RCW 4.12.030 occur both for the convenience of the
25
26   witnesses and to serve the ends of justice, which includes factors such as inter-court comity
27
28   and efficiency. See Clampitt, 98 Wn.2d at 647. Transfer to Thurston County would
29
30   advance both concerns.
31
32            First, with respect to convenience, Petitioners' claim that Chelan County is the most
33
34   convenient venue for this contest is disingenuous at best. Chelan County offers a number of
35
36   attractive features. But convenience for parties and witnesses traveling from across the state
37
38   is not one of them. This contest has no particular factual connection to Chelan County other
39
40   than the fact that voters here – as in every other county of the State – voted in the election at
41
42   issue. Chelan County may be located "near the geographic center of the state," Opposition
43
44   at 7, but it is definitely not located in the transportation center of the State. The convenience
45
46   of getting from one point in the State to another depends on the transportation routes and
47


     REPLY IN SUPPORT OF WSDCC'S                                                      Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                           1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                        Seattle, Washington 98101-3099
     TRANSFER VENUE - 13                                                          Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                   Fax: (206) 359-9000
 1   infrastructure, not the geographic distance. The sheer number of parties appearing by
 2
 3   telephone in recent hearings demonstrates the difficulty and expense of travel to Chelan
 4
 5   County. This difficulty will only be amplified if the case goes forward to trial and dozens of
 6
 7   witnesses are called.12 For most of the individuals involved in this contest, traveling from
 8
 9   their homes to Olympia is easier, safer during winter weather, and takes much less time than
10
11   does traveling to Wenatchee. It is true that this contest involves all the counties and their
12
13   chief election officials, but Petitioners' early stipulated dismissal of various smaller and
14
15   eastern counties, coupled with their statement in open court that they would not even
16
17   consider such arrangements for King, Pierce, and Snohomish counties, demonstrates that
18
19   their plain focus of attention is not on Stevens or Douglas or even Spokane counties, but on
20
21   King, Pierce, and Snohomish counties. The only depositions noted to date by any parties in
22
23   this litigation have involved witnesses from King, Pierce, and Snohomish counties.
24
25   Petitioners have declared in open court their intention to apply particular scrutiny to those
26
27   counties. For the witnesses in these counties (who may well form the vast majority of trial
28
29   witnesses), it is undeniable that Olympia is more convenient than Wenatchee.
30
31            In addition to these factors of convenience, the other factors identified by WSDCC –
32
33   that Olympia is the seat of our State's government; that Olympia is where the Secretary, the
34
35   State's chief election officer, resides; that Olympia is where the Secretary certified the
36
37   election; that Olympia is where the Legislature received that certificate and declared
38
39   Governor Gregoire to be elected – all establish that it would serve the ends of justice for this
40
41
42
43            12To meet their burden of proof to set aside the election, Petitioners cannot offer evidence of
44   any illegal vote unless they have provided a list of those illegal votes "and by whom given."
45   RCW 29A.68.100. "No testimony may be received as to any illegal votes, except as to such as are
46   specified in the list." Id. Barring stipulation, each of those voters will be called to testify and each
47   will spur possible responsive witnesses.

     REPLY IN SUPPORT OF WSDCC'S                                                           Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                                1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                             Seattle, Washington 98101-3099
     TRANSFER VENUE - 14                                                               Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                        Fax: (206) 359-9000
 1   contest to be heard in Olympia. For example, ATU Legislative Council v. State, 145 Wn.2d
 2
 3   544 (2002), cited by Petitioners as an example of a case brought against the auditors of each
 4
 5   county of the State, Opposition at 3 n.2, was brought in Thurston County.
 6
 7            Petitioners assert that the Secretary has taken the position that Chelan County is
 8
 9   "the" appropriate forum for this case. Opposition at 7. Although the Secretary does not
10
11   object to venue in this Court, it is not accurate to say that he has taken the position that the
12
13   contest cannot be heard elsewhere. The Secretary explicitly states that venues other than
14
15   this Court "would be appropriate." Response at 2. He also agrees with WSDCC that venue
16
17   would be proper and appropriate in Thurston County and, in fact, insists that "ordinarily"
18
19   such claims should be filed there. Id. ("Ordinarily . . . an action against Secretary Reed
20
21   should be filed in Thurston County – where his office is located and where official actions
22
23   are performed."). And they should for precisely those reasons.
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                       Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                            1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                         Seattle, Washington 98101-3099
     TRANSFER VENUE - 15                                                           Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                    Fax: (206) 359-9000
 1                                        III.    CONCLUSION
 2
 3            For the reasons set forth above, the Court should grant the Motion to Dismiss for
 4
 5   Improper Venue or, in the Alternative, to Transfer Venue.
 6
 7            DATED: January 31, 2005.
 8
 9   PERKINS COIE LLP                                 SPEIDEL LAW FIRM
10                                                        Russell J. Speidel, WSBA # 12838
11                                                        7 North Wenatchee Avenue, Suite 600
12
13
     By       Kevin J. Hamilton                           Wenatchee, WA 98807
14            Kevin J. Hamilton, WSBA # 15648
                                                      JENNY A. DURKAN
15            William C. Rava, WSBA # 29948               Jenny A. Durkan, WSBA # 15751
16            1201 Third Avenue, Suite 4800               c/o Perkins Coie LLP
17            Seattle, WA 98101-3099
18                                                        1201 Third Avenue, Suite 4800
19                                                        Seattle, WA 98101-3099
     Attorneys for Intervenor-Respondent
20
21
     Washington State Democratic Central
22   Committee
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47


     REPLY IN SUPPORT OF WSDCC'S                                                    Perkins Coie LLP
     MOTION TO DISMISS FOR IMPROPER                                         1201 Third Avenue, Suite 4800
     VENUE OR, IN THE ALTERNATIVE, TO                                      Seattle, Washington 98101-3099
     TRANSFER VENUE - 16                                                        Phone: (206) 359-8000
     [15934-0006-000000/SL050290.051]
                                                                                 Fax: (206) 359-9000

								
To top