                                                                                                           FJLID
                                                                                                  COUR OF APPEALS
                                                                                                     DI VISIDt'4 IT
                                                                                              2013 JUN 19 AM 8: 32

                                                                                              S                       M
    IN THE COURT OF APPEALS OF THE STATE OF WASHING]
                                                                                                      11      Y
                                        DIVISION II

PROTECT THE PENINSULA'S FUTURE,                                      No. 43252 8 II
                                                                               - -
CLALLAM COUNTY CITIZENS FOR
SAFE DRINKING WATER, and
ELOISE KAILIN,

               Appellants Cross -
                          /     Respondents,

       u



CITY OF PORT ANGELES, and
CITY OF FORKS,                                                 PUBLISHED OPINION


                          isCross A
                            /     -


       WORSWICK, C. . —
                  J    Protect the Peninsula's Future, Clallam County Citizens for Safe

Drinking Water, and Eloise Kailin ( ollectively, Kailin)filed a complaint for a search.warrant
                                  c

under RCW 69. 1.claiming that fluoride is a legend drug and that the city of Port Angeles
          060,
            4

and the city of Forks (collectively,the Cities)unlawfully added fluoride to their public drinking

water systems. The trial court denied Kailin's motion to amend the complaint and dismissed it

for failure to state a claim upon which relief can be granted. Kailin appeals, arguing that (1)
                                                                                              the

dismissal for failure to state a claim was unwarranted because fluoridated water is a legend drug

under RCW 69. 1.and because the State Board of Health promulgated two regulations that
          010
            4

violate the supremacy clause of the United States Constitution, art.VI,cl. 2,and (2) trial
                                                                                   the

court erroneously denied her motion to amend the complaint. Two amici, Our Water Our
                                                                                 -

Choice! and   Washington Action for Safe Water,jointly filed   a   brief   supporting   Kailin. In their
No. 43252 8 II
          - -




cross appeal, the Cities argue that the trial court erred by denying their request for sanctions and

attorney fees.

         Following oral argument, we ordered supplemental briefing on the issue of whether RCW

060 creates
69. 1.
  4                 a   private   cause   of action for   a   search warrant.   Order Requiring Supplemental

Briefing, Protect the Peninsula's Future v. City ofPort Angeles, No. 43252 8 II Wash. Cf. App.
                                                                           - - (

Feb. 19, 2013); RAP 12. (
              see   b). that RCW 69. 1.does not create a private cause
                      1 Holding  060
                                   4

of action and that the trial court properly denied both Kailin's motion to amend the complaint

and the Cities' request for sanctions, we affirm.

                                                     FACTS


         The city of Port Angeles and the city of Forks each operate public drinking water

systems. Both Cities add fluoride compounds to the drinking water;Port Angeles adds
                                                                     I
fluorosilicic acid, and Forks adds bulk sodium fluoride.


         Kailin applied for a warrant pursuant to RCW 69. 1.She sought a warrant
                                                      060.
                                                        4
commanding a peace officer to search certain facilities belonging to the Cities and seize their

fluorides and related equipment. Kailin averred that the fluorides are legend drugs under

chapter 69. 1 RCW,that the United States Food and Drug Administration ( DA)regulates the
          4                                                           F

I
    We use the term "luorides"to refer to the Cities' fluoride compounds and fluoridated drinking
                    f
waters.


2
 Under RCW 69. 1.a judge shall issue a warrant to search for and seize legend drugs used,
             060,  4
manufactured, or sold in violation of chapter 69. 1 RCW when " he sworn complaint of any
                                                4            t
person"establishes probable cause to believe a violation has occurred.
3
  Kailin sought to " eize in-
                    s        place"the fluorides, meaning that the Cities would cease adding
fluoride to their drinking water systems and water would continue to flow. Clerk's Papers (CP)
at 271.
No. 43252 8 II
          - -



use of the fluorides to prevent disease in humans, that fluoridated drinking water prevents the

disease of dental caries (tooth decay), that the Cities lacked FDA approval to fluoridate their
                                      and

water systems.

       In an ex parte proceeding, the superior court denied the warrant application. The court

found probable cause to believe that the Cities stored and used fluorides at the facilities.

However, the court ruled "[ here is not probable cause to believe a crime is being committed ...
                         t]

and the issues raised need to be publicly litigated with due process afforded to all parties before

any searches or seizures are justified."Clerk's Papers (CP)at 265.

        Kailin then commenced this action by filing a "certified complaint for search and seizure

warrants,"
         naming herself as plaintiff and the Cities as defendants. CP at 257. Like the ex parte

application, Kailin's complaint relied on RCW 69. 1.and sought a warrant commanding
                                              060
                                                4

peace officers to search the Cities' fluoridation facilities and seize fluoride compounds and

fluoridating equipment. The complaint also sought statutory costs and fees, as well as any other

just and equitable relief.

        On June 7,2011, the Cities filed a motion to dismiss Kailin's complaint under CR

6)
12( )( CR 12( ),
  b and     c arguing that ( ) s complaint failed to state a claim upon which
                           1 Kailin'

relief may be granted and (2) Cities were entitled to judgment on the pleadings. The Cities
                            the
also asked the trial court to sanction Kailin under CR 11 and to award reasonable attorney fees

and costs incurred in defending a frivolous suit under RCW 4.4. On June 10, Kailin moved
                                                           185.
                                                            8

to amend the complaint to request a declaration that the Cities' fluorides meet the statutory

definition of drugs." at 204.
              "      CP




                                                  3
No. 43252 8 II
          - -



         The trial court denied Kailin's motion to amend, reasoning that the amendment would be

futile. The trial court then granted the Cities' motion to dismiss Kailin's complaint under CR

6).
12( )( the trial court declined to sanction Kailin or award attorney fees, explaining that
  b But
Kailin was " cting in good faith and arguing for a good faith change to the law,but [her]remedy
           a

is with the Legislature, not with the courts."Verbatim Report of Proceedings (VRP)at 40.

         Kailin sought direct review by our Supreme Court. The Cities cross appealed. The

Supreme Court transferred the case to us. Order, Protect the Peninsula's Future v. City ofPort

Angeles,No. 86224 9 Wash. Mar. 27,2012).
                  - (
                                             ANALYSIS


                                I. DISMISSAL OF KAILIN'S COMPLAINT


         Kailin argues that the trial court erred by dismissing her complaint for failure to state a

claim upon which relief can be granted. We disagree.

A.       Standard ofReview

         In an appeal from a trial court's dismissal of a complaint for failure to state a claim upon

which relief can be granted, our review is de novo. San Juan County v. No New Gas Tax, 160
Wn. d 141, 164, 157 P. d 831 (2007).In reviewing a CR 12( )(
  2                  3                                6)b dismissal, we presume the

truth of the allegations in the complaint and may consider hypothetical facts not included in the

record. Tenore v. ATT Wireless Servs.,136 Wn. d 322, 330, 962 P. d 104 (1998).Such
                    &                       2                  2

dismissals are appropriate only in unusual cases where, on the face of the complaint,there is an

insuperable bar to relief. San Juan County, 160 Wn. d at 164.
                                                  2

4
    We also review de novo a CR 12( )
                                  c judgment on the pleadings. Gaspar v. Peshastin Hi Up
                                                                                      -
Growers, 131 Wn. App. 630, 634 35, 128 P. d 627 (
                               -        3       2006).
No. 43252 8 II
          - -



B.       RCW 69. 1.Creates No Private Cause ofAction
             060
               4

         Kailin argues that RCW 69. 1.creates a private cause of action. We disagree.
                                060
                                  4
         As an initial matter, we recognize that the parties correctly characterize this action as a

civil action. Citing the example of City ofSeattle v. McCready, 123. n.260, 868 P. d 134
                                                                2d W             2

1994),
     Kailin argues that a complaint commencing a civil action is a proper means of applying

for a statutorily authorized search warrant. We agree that an action for a search warrant is a civil

action in rem, and it is distinct from a criminal prosecution against an individual. State v. Twenty

Barrels of Whiskey, 104 Wash. 382, 387, 176 P. 673 (1918);
                                                         State v. Great N Ry. Co., Wash.
                                                                                 98

197, 198, 201, 167 P. 103 (1917); Furnia v. Grays Harbor County, 158 Wash. 619, 626 27,
                                see                                                 -

291 P. 1111 (1930).

         However, Kailin further argues that RCW 69. 1.allows any person to allege a civil
                                                 060
                                                   4

cause of action for a warrant to search for legend drugs held in violation of chapter 69. 1 RCW.
                                                                                        4

This argument ignores the distinction between a private cause of action and a public cause of

action, and this distinction is critical to determining who may bring an action to enforce a statute.

See Davis v. Passman, 442 U. .228, 241, 99 S. Ct. 2264, 60 L.Ed. 2d 846 (1979).A civil
                           S

action for a search warrant is a public cause of action because it is brought by "he state in the
                                                                                 t

exercise of its police powers as plaintiff,as in other cases of violation of the criminal laws."

Great N. Ry., Wash. at 201; see Davis, 442 U. .at 241. But because Kailin brought her
            98                              S

complaint as a private person, she cannot maintain a public cause of action.



5
    Although this issue was not raised below, we consider the issue because it affects Kailin's right
to maintain the action. See Bennett v. Hardy, 113 Wn. d 912, 918, 784 P. d 1258 (1990).
                                                    2                  2


                                                    5
No. 43252 8 II
          - -




       Thus the question is whether RCW 69. 1.creates a private cause of action that allows
                                        060
                                          4

Kailin to sue for a search warrant. Kailin asserts that the statute implies a private cause of action.

We disagree.

       RCW 69. 1.
           060 provides, in relevant part:
             4

       If, upon the sworn complaint of any person, it shall be made to appear to any
       judge of the superior or district court that there is probable cause to believe that
       any legend drug is being used, manufactured, sold, bartered, exchanged, given
       away, furnished or otherwise disposed of or kept in violation of the provisions of
       this chapter, such judge shall, with or without the approval of the prosecuting
       attorney, issue a warrant directed to any peace officer in the county, commanding
       the. peace officer to search the premises designated and described in such
       complaint and warrant, and    to seize all   legend drugs   there found ...   and to safely
       keep the same ....

       Washington courts recognize that a statute may create an implied private cause of action

when the legislature did not expressly provide an adequate remedy for violations of statutory

rights. Cazzanigi v. Gen. Elec. Credit Corp.,132 Wn. d 433, 445, 938 P. d 819 (1997);
                                                   2                  2             Bennett
v. Hardy, 113 Wn. d 912, 919 20,784 P. d 1258 (1990).To determine whether a statute creates
                2            -       2

an implied private cause of action,we examine three factors: 1)
                                                             ( whether the plaintiff is a

member of the class for whose " special"benefit the legislature enacted the statute, 2)
                              e                                                      ( whether

explicit or implicit evidence of legislative intent supports recognition of a private cause of action,

and (3)
      whether an implied private cause of action is consistent with the statute's underlying

purpose. Bennett, 113 Wn. d at 920 21. All three of the Bennett factors are lacking here.
                        2          -

        1. Chapter 69. 1 RCW Confers No Especial Benefit on Any Class
                     4

        First,Kailin is not a member of a class for whose especial benefit the legislature enacted

chapter 69. 1 RCW, because the legislature enacted chapter 69. 1 RCW to protect the general
          4                                                  4

public from risks posed by legend drugs. See State v. Garza -Villarreal, 123 Wn. d 42, 47, 864
                                                                               2


                                                     Cel
No. 43252 8 II
          - -



P. d 1378 (1993)holding that the public at large is the victim of criminal possession of
 2               (

controlled substances). When a statute protects the general public instead of an identifiable class

of persons, a plaintiff is not a member of the class for whose especial benefit the statute was

enacted. Fisk v. City ofKirkland, 164 Wn. d 891, 895, 194 P. d 984 (2008); Davenport v.
                                        2                  3             see

Wash. Educ. Ass'n,147 Wn.App. 704, 719, 197 P. d 686 (2008).
                                             3

       Arguing to the contrary, Kailin asserts that she is a member of the class of people who
                                                                       "

would be adversely affected by a legend drug processed in violation of chapter 69. 1 RCW."
                                                                                 4

Suppl. Br. of Appellant ( Kailin)at 9. But Kailin does not argue that the legislature enacted
                                                           -

chapter 69. 1 RCW for any class's especial benefit, nor does she attempt to define that class.
          4

       2. Legislative Intent Does Not Support Recognition ofa Private Cause ofAction

       Next,the available evidence of legislative intent behind RCW 69. 1.does not support
                                                                    060
                                                                      4

recognition of a private cause of action for a search warrant. The Cities argue that nothing in the

legislative history of RCW 69. 1.suggests that the legislature intended a private person to
                           060
                             4

apply for a search warrant for legend drugs. We agree.

       The legislature authorized search warrants for legend drugs when it enacted RCW

060.
69. 1. LAWS
  4                of   1973, 1st Ex. Sess.,ch. 186, § 6 (H. .766):Contemporaneous legislative
                                                           B

reports refer to the bill's criminal penalties and authorization of search warrants based on

probable cause established by the sworn complaint of any person. S. .REP. on E. .766, 43d
                                                                  B          B.
                                                                              H

Leg., Ex. Sess. Wash. 1973); B.REP. on H. .766, 43d Leg., Ex. Sess. Wash. 1973).
    1st         (          H.           B               1st         (

But the reports make no mention of enforcement by private persons. Therefore, there is no

evidence that the legislature intended to create a private cause of action.




                                                  7
No. 43252 8 II
          - -




       Arguing to the contrary, Kailin points out that RCW 69. 1.authorizes the court to
                                                           060
                                                             4

issue a warrant " pon the sworn complaint of any person"and "with or without the approval of
                u

the prosecuting attorney."Kailin argues that, with these phrases, the statute allows any private

citizen to apply for a search warrant to seize legend drugs. Wash. Court of Appeals oral

argument, Protect the Peninsula's Future v. City ofPort Angeles, No.43252 8 II Jan. 7,2013),
                                                                          - - (

at 11 min., sec.13 min., sec. on file with court).We disagree.
          50    -      55     (

       The phrases "upon the sworn complaint of any person"and " ith or without the approval
                                                               w

of the prosecuting attorney"are not unique to RCW 69. 1.
                                                  060;
                                                    4 they also appear in two older

statutes that use nearly identical language to authorize search warrants. This language
apparently originated in the oldest of the three statutes, which was first enacted as part of

Washington's prohibition law and which is presently codified at RCW 66. 2.
                                                                    020.
                                                                      3
       Kailin contends that any person may apply for a legend drug warrant under RCW

060,
69. 1. as any person may apply for an intoxicating liquor warrant under RCW
  4 just

020.
66. 2. We disagree.
  3

       Washington's prohibition law contained two citizen -
                                                          enforcement provisions that departed

dramatically from ordinary criminal procedure. First,the prohibition law allowed any citizen to


6 The older statutes authorized search warrants for illegal intoxicating liquor and controlled
substances, respectively.   LAWS of    1915, ch. 2, §11 (intoxicating liquor warrants, now codified
at RCW 020); of
       66. 2. 3    LAWS                              ch.
                                   1951, 2d Ex. Sess., 22, §24 (controlled substances warrants,
now codified at RCW 69. 0.
                    509).
                        5

7 Until its repeal, Washington's prohibition law authorized search warrants for illegal
intoxicating liquor.   LAWS   of   1915, ch. 2, § (repealed by LAWS
                                                 11                   of   1933, ch. 2, § see Van
                                                                                         2);
Bug Fish Co. v. Herstrom, 104 Wash. 545, 546 47,177 P.334 (1918).In 1943, the legislature
                                               -
revived the prohibition law's search warrant provision by reenacting it in nearly identical form.
LAWS of   1943, ch. 216, 3( ) ( codified
                         §. 2 now                at RCW   020)).
                                                          66. 2.
                                                            3
No. 43252 8 II
          - -



initiate a criminal case by filing a " worn complaint"with a superior court or justice of the
                                     s

peace. Second, the prohibition law allowed any citizen to hire an attorney to prosecute a
criminal case, even when the prosecuting attorney refused. Given these citizen -enforcement
provisions, the prohibition law may have permitted private persons to seek search warrants for

illegal intoxicating liquor. However, the legislature repealed these citizen -
                                                                             enforcement

provisions and, unlike the statute providing for intoxicating liquor warrants, did not reenact

them. LAWS     of   1933, ch. 2, § see LAWS of 1943, ch. 216.
                                  2;

       In contrast to the prohibition law,the legend drug statutes in chapter 69. 1 RCW contain
                                                                                4

no citizen -enforcement provisions. Differences in the text of two statutes show that the

legislature's intent differed too. Cazzanigi, 132 Wn. d at 446. Because chapter 69. 1 RCW
                                                    2                             4

contains no citizen -enforcement provisions, we hold that legislative intent does not support

recognition of a private cause of action for a search warrant.

        3. An Implied Private Cause ofAction Is Not Consistent with the Statute's Purpose

       Lastly, an implied private cause of action is not consistent with chapter 69. 1 RCW's
                                                                                   4

purpose of establishing criminal penalties for the unlawful possession or use of legend drugs.

8
 The prohibition law provided: Every justice of the peace or superior judge shall recognize and
                               "
act upon any sworn complaint of a violation of this act filed by any citizen of the state in the
same manner and to the same extent as though the same were filed by a prosecuting officer."
LAWS   of   1915, ch. 2, § (repealed by LAWS
                          27                   of   1933, ch. 2, §2).

9 The prohibition law also provided: Any citizen or organization within this state may employ
                                     "
an attorney to assist the prosecuting attorney in any action or proceeding under this act, and such
attorney shall be recognized by the prosecuting attorney and the court as associate counsel in the
case, and no prosecution shall be dismissed over the objection of such associate counsel until the
reasons of such prosecuting attorney for such dismissal, together with the objections of such
associate counsel, shall have been filed in writing, argued by counsel and fully considered by the
court."LAWS     of   1915, ch. 2, §14 (repealed by LAWS of 1933, ch. 2, §2).



                                                  7
No. 43252 8 II
          - -



See RCW 69. 1.030, 040, 050, 170, 320( ), . In Washington, all criminal
        020, . .
          4             .    .    . 1 350.

prosecutions must be brought in the State's name and by the State's authority. WASH. CONST.
art. IV,   27. Our Supreme Court has recognized that a search warrant is a " ool of governmental
           §                                                               t

authority"and " ne of the most extraordinary means by which the State may exert its power."
              o

McCready, 123 Wn. d at 277 78. Thus, a private cause of action for a search warrant would
                2          -

allow a private citizen to exercise extraordinary governmental authority to search for evidence

the State could use to prosecute another person. But that is inconsistent with a system in which

the power to prosecute criminal acts is vested in public prosecutors. See Linda R. S. v. Richard

D., U. .614, 619, 93 S. Ct. 1146, 35 L.Ed. 2d 536 (1973) I] American jurisprudence at
  410 S                                                  ( "[
                                                            n

least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution

of another. ").   Thus a private cause of action for a search warrant is inconsistent with the purpose

of RCW 69. 1.
       060.
         4


       RCW 69. 1.does not create an implied private cause of action for a search warrant
           060
             4

because none of the three Bennett factors is met. See Bennett, 113 Wn. d at 920 21. The
                                                                     2          -

nonexistence of a private cause of action is an insuperable bar to the relief Kailin sought.

Therefore, on this alternative ground, we affirm the trial court's dismissal of Kailin's complaint,

without deciding the merits of Kailin's assignments of error to the CR 12( )(
                                                                       6)b dismissal. See

San Juan County, 160 Wn. d at 164.
                       2




to
  Chapter 69. 1 RCW also has a regulatory purpose, in that it directs the Board of Pharmacy to
              4
regulate the lawful use of legend drugs by licensed pharmacists. RCW 69. 1.075, 080,
                                                                        042, . .
                                                                            4
180, 240. But the search warrant provision in RCW 69. 1.clearly relates to the chapter's
     .                                            060
                                                    4
criminal law purpose.


                                                    10
No. 43252 8 II
          - -



                         II. KAILIN'S MOTION TO AMEND THE COMPLAINT


         Kailin further argues that the trial court erred by denying her motion to amend her

complaint. We disagree.

         We review a trial court's ruling on a motion to amend the complaint for an abuse of

discretion. Caruso v. Local Union No. 690 ofInt'l Bhd. of Teamsters, 100 Wn. d 343, 351, 670
                                                                           2

P. d 240 (1983).A trial court abuses its discretion when its decision is manifestly unreasonable,
 2

based on untenable grounds, or made for untenable reasons. Wilson v. Horsley, 137 Wn. d 500,
                                                                                    2

505, 974 P. d 316 (
          2       1999).

         To amend a pleading after the opposing party has responded to it,the amending party

must obtain the trial court's leave or the opposing party's consent. See CR 15( ). trial court
                                                                              a A

must grant leave freely " hen justice so requires."CR 15( ). a trial court may refuse to
                        w                               a But

grant leave when the amendment would be futile. Ino Ino, Inc. v. City ofBellevue, 132 Wn. d
                                                                                        2

103, 142, 937 P. d 154 (1997).
               2

         Here, Kailin sought the trial court's leave to amend the complaint by adding a request

that the trial court declare that the Cities' fluorides are drugs. The trial court denied the motion

on the grounds that it would be futile, given that fluorides in public drinking water were held not

to be drugs in Kaul v. City ofChehalis, 45 Wn. d 616, 625, 277 P. d 352 (1954).
                                             2                  2             Kailin


11
     Since Kaul was decided, the legislature has not changed the definition of drug"in RCW
                                                                               "
69. 4. any way that affects
009 in
  0                                 our   analysis.   See LAWS   OF   2009, ch. 549, § 1018. RCW
009
69. 4.defines " rug"in language that is almost identical to the federal definition found in 21
  0           d
C. 1). even
U. . 321(
 S    § )(
        g However,                    when a state statute contains language that is exactly the
same as a federal statute, our Supreme Court decides the meaning of the state statute. See
McCurry v. Chevy Chase Bank, FSB, 169 Wn. d 96, 101 03,233 P. d 861 (2010)holding that
                                        2           -       3              (
the interpretation of CR 12( )( from that of Fed. R. Civ. P. 12( )( identical
                         6)b differs                         6),  b despite
language).

                                                      11
No. 43252 8 II
          - -




contends that the trial court abused its discretion because Kaul's statement about drugs is mere

dicta. Kailin is incorrect.


       A statement is dicta when it is not necessary to the court's decision in a case. Ruse v.

Dep't of Labor & Indus.,
                       138 Wn. d 1, 8 9,977 P. d 570 (1999).Dicta is not binding authority.
                             2        -      2

See Hildahl v. Bringolf, 101 Wn. App. 634, 50-5 P. d 38 (2000).
                                      51, 3
                                         6

       In Kaul,a Chehalis resident challenged a city ordinance requiring fluoridation of its water

supply, basing his challenge on constitutional and statutory provisions. 45 Wn. d at 617 18.
                                                                              2          -

The trial court dismissed the resident's suit and upheld the ordinance. 45 Wn. d at 618 19. On
                                                                             2          -

appeal, our Supreme Court affirmed in an opinion that focused primarily on the city's police

powers and the resident's constitutional rights. 45 Wn. d at 619 25. The resident also assigned
                                                      2          -

error to the trial court's conclusion "hat the city is not engaged in selling drugs, practicing
                                      t

medicine, dentistry, or pharmacy as defined by statute."45 Wn. d at 625. The Court considered
                                                             2

and summarily rejected this assignment of error. 45 Wn. d at 625. Because a holding that
                                                      2

fluoridated waters are drugs would have resulted in a different outcome, Kaul's statement is not

dicta. See Ruse, 138 Wn. d at 8 9.
                       2        -

        In the alternative, Kailin argues that Kaul is no longer controlling authority on whether

the Cities' fluorides are drugs. In support of this argument, Kailin contends that the Federal

Food, Drug, and Cosmetic Act's broad definition of drugs"must receive a literal construction
                                                   "

after United States   v. An   Article   of Drug ... Bacto-Unidisk, 394 U. .784, 89 S. Ct. 1410, 22 L.
                                                                        S




                                                      12-
No. 43252 8 II
          - -



Ed. 2d 726 (1969). Kailin ignores Kaul's decision that fluorides in drinking water are not
                 But

drugs under Washington law. See Kaul, 45 Wn. d at 625. For the purposes of Kailin's motion
                                           2

to amend her complaint, drug"is defined by RCW 69. 4.and applicable Washington case
                        "                      009
                                                 0

lawnot in the Federal Food, Drug, and Cosmetic Act. Thus Bacto -Unidisk is unavailing.
   —

         Lastly, Kailin maintains that justice requires the trial court to grant leave to amend her

complaint, because she could be precluded from making the same argument in a future case. But

the possibility of preclusion does not diminish the futility of her motion to amend. The trial
                                                            13
court did   not abuse its discretion in   denying her motion.    Kailin's appeal fails.

                                          III. AMICI CURIAE BRIEF


         The amici raise three issues, none of which alter our analysis.

         First,the amici invite us either to judicially notice or to consider as a hypothetical fact

that the FDA has decided fluorides in drinking water are prescription drugs under federal law.




12 In relevant part,the Federal Food, Drug, and Cosmetic Act provides: The term `drug' means
                                                                       "
    articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease
in   man or other animals."21 U. . 321(
                                C. 1)( Kailin alleged that the Cities use fluorides
                                   S       §    B).
                                                g)(
to prevent the disease of dental caries.
13
   Because the trial court did not err,we do not consider the Cities' alternative arguments that ( )
                                                                                                 1
there is no need to decide whether the fluorides are drugs and (2) whether the fluorides are drugs
is an issue falling within the primary jurisdiction of the Board of Pharmacy and Department of
Health. We also do not decide whether Kailin's proposed amended complaint would present a
justiciable declaratory judgment claim. See To Ro Trade Shows v. Collins, 144 Wn. d 403, 411,
                                               -                                2
27 P. d 1149 (2001).
    3



                                                     13
No. 43252 8 II
          - -



                                   14
We decline the amici's invitation.      As we explained above, Kailin sought a search warrant

under state law and, therefore, the status of the Cities' fluorides under federal law has limited

relevance to the issues in this appeal.

        Second, the amici contest the Cities' assertion that the doctrine of primary jurisdiction

precludes us from deciding whether the Cities' fluorides are prescription drugs under federal law.

We do not address the doctrine of primary jurisdiction or decide whether the Cities' fluorides are

prescription drugs under federal law because these questions are not necessary to deciding the

issue presented by Kailin's motion to amend the complaint: whether the Cities' fluorides are

drugs under Title 69 RCW.

        Third, the amici argue that chapter 69. 1 RCW is ambiguous and therefore this court
                                              4

must defer to the Board of Pharmacy's ruling that the Cities' fluorides are legend drugs. This

argument misrepresents the record. The Board's purported ruling is a letter stating that fluoride

is,in general, a legend drug but that RCW 57. 8.supersedes the legend drug statutes in
                                          012
                                            0

chapter 69. 1 RCW as applied to fluoridated water supplies. Thus,the letter clearly is not a
          4

ruling"that the Cities' fluorides are legend drugs. Moreover neither parry has argued that

chapter 69. 1 RCW is ambiguous, and this court does not consider new issues raised for the first
          4
time in an amicus brief. Ruffv. King County, 125 Wn. d 697, 704 n. ,887 P. d 886 (1995).
                                                   2             2       2




14 A CR 12 analysis permits us to hypothesize that the Cities' fluorides are prescription drugs
under federal law. See McCurry, 169 Wn. d at 101. But judicial notice is not appropriate here
                                         2
because the amici have failed to supply an accurate and authoritative source verifying the
purported fact. ER 201( ), City ofSeattle v. Peterson, 39 Wn.App. 524, 529, 693 P. d 757
                      b d);(                                                     2
1985).



                                                   14
No. 43252 8 II
          - -



            IV. THE CITIES' REQUEST FOR REASONABLE ATTORNEY FEES AND COSTS

       In their cross appeal, the Cities argue that the trial court erred by declining to award

reasonable attorney fees and costs incurred in defending this suit. We disagree.

       A court may award attorney fees only when authorized by a contract, a statute, or a

recognized ground in equity. Bowles v. Dept ofRet. Sys.,121 Wn. d 52, 70, 847 P. d 440
                                                              2                2

1993).Here, the Cities sought an award of reasonable attorney fees and costs under ( )
                                                                                   1 RCW

185
4.4.and (2) 11.
 8         CR

       Under both RCW 4.4.and CR 11, we review a trial court's denial of a request for
                      185
                       8

reasonable attorney fees and costs for an abuse of discretion. Bldg. Indus. Assn of Wash. v.

McCarthy, 152 Wn. App. 720, 745, 218 P. d 196 (2009).A court abuses its discretion when its
                                      3

decision is manifestly unreasonable or based on untenable grounds. Dix v, ICT Grp.,
                                                                                  Inc.,
                                                                                      160

Wn. d 826, 833, 161 P. d 1016 (2007).A court necessarily abuses its discretion when basing its
  2                  3

decision on an erroneous view of the law or when applying an incorrect legal standard. Dix, 160

Wn. d at 833.
  2


A.     RCW 4.4.
           185
             8


       First, when an action is frivolous, RCW 4.4.authorizes the trial court to award the
                                               185
                                                8

prevailing party reasonable expenses, including attorney fees. Bldg. Indus. Assn, 152 Wn. App.

at 745. " lawsuit is frivolous if,when considering the action in its entirety, it cannot be
        A

supported by any rational argument based in fact or law."
                                                        Dave Johnson Ins., v. Wright, 167
                                                                         Inc.

Wn. App. 758, 785, 275 P. d 339, review denied, 175 Wn. d 1008 (2012).
                        3                             2

       The Cities argue that the trial court abused its discretion when it applied an incorrect

legal standard to deny the Cities' request " olely because"Kailin made a good faith argument for
                                           s


                                                 15
No. 43252 8 II
          - -



a change in the law. Br. of Resp't at 41. But the Cities misstate the record. In fact,the trial

court also determined that Kailin's complaint was not entirely unsupportable by a rational

argument. Before granting the Cities' motion to dismiss,the trial court explained,
            I   appreciate   the argument that [ Kailin   is] making. I can understand why you
            could, I guess, attempt [to] argue that fluoride that's added to the water and
            fluoridated water are drugs that should be controlled by the Board of Pharmacy or
            the FDA,but they [are not].

VRP at 39. Thus the trial court did not apply an incorrect legal standard in denying the Cities'

request under RCW 4.4. This argument fails.
                  185.
                    8

B.          CR 11


            Next,the Cities argue that the trial court also applied an incorrect legal standard when

denying their request for CR 11 sanctions, because the trial court did not find whether Kailin's

complaint lacked a sufficient factual basis. This argument fails.

            Under CR 11( ), person who signs a complaint must certify, inter alia,that the
                       a the

complaint " s well grounded in fact," only " o the best of the [person's]
          i                         but    t                            knowledge,

information,and belief, formed after an inquiry reasonable under the circumstances." CR 11( ).
                                                                                          a

If   a   person has violated this requirement, the trial          may
                                                            court "     impose ... an appropriate sanction,

which may include an order to pay [the opposing party's reasonable costs and attorney fees]."

CR I I a) (
       ( emphasis added).But a trial court is not required to impose sanctions for every

violation of CR 11. Biggs v. Vail, 124 Wn. d 193, 200, 876 P. d 448 (1994).Accordingly, a
                                         2                  2

trial court may deny a request for sanctions without entering findings on whether a CR 11

violation occurred. Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P. d 707 (2004).
                                                                  3




                                                          Wit
No. 43252 8 II
          - -




       Here, the trial court stated that Kailin was "acting in good faith and arguing for a good

faith change to the law."
                        VRP at 40. The trial court properly exercised its discretion in refusing

to sanction a party who acted in good faith. The Cities are not entitled to an award of reasonable

costs and attorney fees.

                                ATTORNEY FEES ON APPEAL


       Both Kailin and the Cities request attorney fees and costs on appeal. We decline both

requests.

       Kailin requests statutory attorney fees and costs under RCW 4.4.and .080. But
                                                                   020
                                                                    8

RCW 4.4.limits these costs and fees to the prevailing party. Kailin is not the prevailing
    010
      8

party here, and we deny her request for attorney fees and costs.

       Citing RAP 18. ( Cities request an award of their attorney fees and costs for
                  a),
                    9 the

defending a frivolous appeal. In determining whether an appeal is frivolous, five considerations

guide us: 1) civil appellant has a right to appeal, 2) resolve any doubts about whether an
          ( a                                       ( we

appeal is frivolous in the appellant's favor, 3) consider the record as a whole, 4)
                                              ( we                               ( an

unsuccessful appeal is not necessarily frivolous, and (5) appeal is frivolous if it raises no
                                                        an

debatable issues on which reasonable minds might differ and it is so totally devoid of merit that

no reasonable possibility of reversal exists. Carrillo v. City of Ocean Shores, 122 Wn.App. 592,

619, 94 P. d 961 (2004)citing Streater v. White, 26 Wn.App. 430, 434 35,613 P. d 187
         3              (                                            -       2

1980)).

       Even if binding precedent had directly controlled the outcome of this appeal, Kailin

sought direct review in our Supreme Court and asked the Court to " verrule, clarify, or
                                                                 o

distinguish"two of its prior cases: Kaul, 45 Wn. d at 616, and City ofPort Angeles v. Our
                                               2


                                                17
No. 43252 8 II
          - -




Water Our Choice!,170 Wn. d 1, 239 P. d 589 ( 010).Br. of Appellant at 5. Although we
      -                 2           3       2

must apply binding precedent, the judgment below could have been reversed if our Supreme

Court had overruled its prior decisions. That prospect is not entirely unreasonable, given that

both Kaul and City ofPort Angeles were five to four decisions. Kaul, 45 Wn. d at 616; City of
                                            - -                           2

Port Angeles, 170 Wn. d at 1. Given the procedural posture of this appeal and Kailin's request
                    2

that the Court overrule binding precedent, we hold that Kailin's appeal is not so devoid of merit

that no reasonable possibility of reversal exists.

       The Cities further contend that Kailin filed this appeal to promote her " olitical agenda"
                                                                               p

of opposing the fluoridation of public drinking water. Br. of Resp't at 47. The Cities urge that,

unless we order Kailin to pay the Cities' attorney fees, the courts will continue to be sources for
                                                          "

political expression, rather than judicial dispute resolution."Br. of Resp't at 41. But in deciding

whether Kailin's appeal is frivolous, we do not judge the purity of the reasons that motivated

Kailin to appeal; instead, we resolve all doubts in Kailin's favor. See Carrillo, 122 Wn. App. at

619. Because we hold that Kailin's appeal is not frivolous,we decline to award reasonable

attorney fees to the Cities.
          rr     I




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