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                                                                                                     COOT CI' APPEALS
                                                                                                        M`,fISIM 11

                                                                                                    2013 DEC 17        AM S. 4 9
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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II


LEWIS COUNTY,                                                    I                       No. 43790 -2 -II


                                           Appellant,


         V.



STATE OF WASHINGTON,                                                 I              PUBLISHED OPINION




         JOHANSON, J. —           Lewis County appeals the trial court' s order dismissing its declaratory

judgment      action without prejudice.            The County argues that the trial court erred in dismissing its

case    because ( 1)      it   meets       all   four justiciable        controversy     elements   under        the " Uniform



Declaratory     Judgments Act" ( UDJA), chapter 7. 24 RCW; and ( 2) in the alternative, it is a case of


major    public   importance.          We affirm because the trial court did not abuse its discretion in


dismissing the County' s case which neither meets the justiciable controversy elements nor

presents an issue of major public importance.

                                                           FACTS


         In October 2011,           the County sought judgment declaring that the State, and not the

County,       bears   civil    liability    for the   official       acts   of   Lewis   County   Superior Court judges,
No. 43790 -2 -II



commissioners, juvenile court and juvenile detention staff, and other officers and employees

 hereinafter " the Judicial Branch ").            The County alleged that from time to time, parties bring

proceedings against it claiming money damages and other relief due to acts of the Judicial

Branch.     In the past, the County was liable for such money damages, and the County sought a

declaration that   all   future   successful similar      disputes be the State'       s   financial responsibility. The


County alleged that this case presented a question of great public importance to each of

Washington'    s counties and      to   all people of    Washington.        The State responded that the County' s

case did not present a justiciable claim under the UDJA and alleged that the trial court lacked

jurisdiction to hear the case.


        The County then filed several declarations that explained how the superior court judges
                                                                                            1
had handled    proceedings        involving     the Judicial Branch        in the   past.       One declaration was from


Vyrle Hill, Executive Director             of    the   Washington Counties Risk Pool ( " Risk Pool "), the


County' s insurance       provider.      Hill' s declaration listed the claims and lawsuits submitted to the


Risk Pool from 2000 through 2011 relating to actions of the Judicial Branch.

          The State filed a motion for judgment on the pleadings under CR 12( c) and claimed lack

of subject matter   jurisdiction        under   CR 12( b)( 1).       The State argued that the judgment the County




1 The chief civil deputy of the prosecuting attorney' s office filed a declaration explaining that
when legal or administrative actions involving the Judicial Branch had arisen in the past, that the
judges would decide whether to use the prosecutor' s attorneys or private. practice defense
attorneys   to handle the     action.     The County' s human resources administrator filed a declaration
explaining that the judges did not regularly ask him for human resource advice, did not have
their own human resources specialist, and did not contract with an outside human resources
specialist. A County commissioner filed a declaration explaining that the judges made their own
employment decisions and that the commissioners could offer advice but could not adopt any
policies to reduce civil liability for the Judicial Branch.



                                                                 2
No. 43790 -2 -II



sought would reverse 123 years of established law and practice by relieving the County of all

liability for the official acts of the Judicial Branch, and that this practice would be more proper
for the legislature,   not   the   court,   to     change   if it desired.       The State also argued that the court


should dismiss the County' s complaint because it asked the court to speculate about hypothetical

fact patterns that may never arise, had not pleaded a justiciable controversy under the UDJA, and

had   not   joined necessary       parties.      In response, the County argued that the State should be

financially responsible for the Judicial Branch because the County is unable to control or direct

the Judicial Branch' s conduct, that its claim met all the UDJA' s justiciability elements, that all

necessary parties were joined, and that its complaint presented a significant and continuing

matter of public importance.2

        The trial court granted the State' s motion to dismiss and ordered judgment on the

pleadings.    After quoting the elements for a justiciable controversy, the court ruled that judgment

for the State   was    appropriate    because ( 1) the        County did         not present "` an actual,   present, and




existing dispute, "' quoting Walker           v.   Munro, 124 Wn.2d 402, 411, 879 P. 2d 920 ( 1994); ( 2) the


County did not present interests that were direct and substantial; and ( 3) there was no tort claim

pending against the County. The court also ruled that the County' s case did not present an issue

of major     public   importance      and     dismissed the County'          s    complaint   without   prejudice.   The


County appeals.




2
    The County supported its response with a declaration from the County' s risk and safety
administrator, who explained that the Risk Pool decides whether to settle or defend claims and
that if the County disagreed with the Risk Pool' s decision, the County could lose its insurance
coverage.




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No. 43790 -2 -II



                                                     ANALYSIS


                                         1.      STANDARD OF REVIEW


         A court will refuse to consider a declaratory judgment action when it determines that the

plaintiff has not presented a judiciable controversy and has not presented an issue of major

public   importance. Nollette   v.   Christianson, 115 Wn.2d 594, 598, 800 P. 2d 359 ( 1990);                 Kitsap

County v. Smith, 143 Wn. App. 893, 902, 180 P. 3d 834, review denied, 164 Wn.2d 1036 ( 2008).

We review a trial court' s refusal to consider a declaratory judgment action for an abuse of

discretion.   Nollette, 115 Wn.2d      at     599;   Kitsap County,   143 Wn.     App.     at   902.   A trial court


abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.

Kitsap County, 143 Wn. App. at 902.

          A court' s decision is manifestly unreasonable if it is outside the range of
         acceptable choices, given the facts and the applicable legal standard; it is based on
         untenable grounds if the factual findings are unsupported by the record; it is based
         on untenable reasons if it is based on an incorrect standard or the facts do not
         meet the requirements of the correct standard."



Kitsap County, 143 Wn. App. at 902 ( quoting Lu v. King County, 110 Wn. App. 92, 99, 38 P. 3d

1040 ( 2002)).


         Here, the trial court refused to consider the declaratory judgment action because the

County had failed to present a justiciable controversy and did not present an issue of major

public importance. Thus, we must determine whether it abused its discretion in doing so.

                                                   II. DISCUSSION


         Courts have the "`   power   to declare     rights, status and other   legal   relations "'   by declaratory

judgment. League of Educ. Voters            v.   State, 176 Wn.2d 808, 816, 295 P. 3d 743 ( 2013) ( quoting


RCW 7. 24. 010).    For a trial court to render a declaratory judgment under the UDJA, there must



                                                          0
No. 43790 -2 -I1




be   a   justiciable controversy,        unless   the   case presents an    issue   of major public   importance.     Wash.


State Republican Party v. Wash. State Pub. Disclosure Comm' n, 141 Wn.2d 245, 284, 4 P. 3d

808 ( 2000).             We agree with the trial court that the County presented neither type of qualifying

issue here.


                                                  A. Justiciable Controversy

            A justiciable controversy is

                1) ...      an actual, present and existing dispute, or the mature seeds of one, as
            distinguished        from    a    possible,    dormant, hypothetical,          speculative,   or   moot

            disagreement, ( 2) between             parties   having   genuine       and   opposing interests, ( 3)
            which involves interests that must be direct and substantial, rather than potential,
            theoretical, abstract or academic, and ( 4) a judicial determination of which will be
            final and conclusive."


Republican Party, 141 Wn.2d at 284 ( quoting Wash. State Coal. for the Homeless v. Dep' t of

Soc. & Health Servs., 133 Wn.2d 894, 917, 949 P. 2d 1291 ( 1997)).                           Each of these four elements


must       be    met,      otherwise    the   court "   steps into the prohibited area of advisory opinions."

Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P. 2d 137 ( 1973).

            Addressing the first justiciability element, the County argues that its case presents an

 actual, present and existing dispute, or the mature seeds of one" because of the frequency and

regularity with which damage claims against the officers and employees of all 39 Washington

superior courts arise.            Republican      Party,   141 Wn.2d   at   284.    The State argues that the County' s

case presents only a speculative or moot disagreement because the County did not currently have

 any individuals suing or even making a demand on the County for tortious conduct of any of the

 Judicial Branch.             The State is     correct.    The County makes bare assertions but does not cite

 similar cases that would show that its case presents an actual, present, and existing dispute or




                                                                 E
No. 43790 -2 -II



even   the   mature seeds of such a       dispute.   Thus the County gives us no basis to hold that the trial

court abused its discretion.


            Furthermore, as the State points out, this case is very similar to Diversified Industries

where our      Supreme Court held that the first         justiciability   element        had   not   been   met.   82 Wn.2d


815.    In Diversified Industries, a lessor brought a declaratory judgment action against residential

unit lessees and their liability insurer, asking the court to declare who would be financially

responsible     for   accidents or   injuries to   a social guest on    the   lessees'    premises.     82 Wn.2d at 812.


For the first justiciability element, the Supreme Court held that until the claim for financial

responsibility from the social guest became " something more discernible than an unpredictable
                                                                                     3
contingency," the        case was a     hypothetical    or speculative    dispute.       Diversified Indus., 82 Wn.2d


at   815.    Therefore, the court reversed the trial court' s declaratory judgment and dismissed the

case without prejudice. Diversified Indus., 82 Wn.2d at 815. Here, the County presents a similar

hypothetical or speculative dispute and simply cannot show that the first justiciability element is

met.4

            Addressing the third justiciability element, the County argues that the amount of money

at stake in the future creates a direct and substantial interest here, citing Hill' s declaration listing

the claims and lawsuits submitted to the Risk Pool from 2000 through 2011, and citing Health &




3 The court also discussed the fourth justiciability element and explained that because the
legislature had just recently            made      changes   to   the            tenant laws,
                                                                        landlord -                      other intervening
developments in the field could easily have an effect on any interpretation that the declaratory
judgment might provide. Diversified Indus., 82 Wn.2d at 815.


4 Because the County must establish all four elements to demonstrate a justiciable controversy
the    failure to     establish   any   one   element   is fatal to its   claim.         Nonetheless, we exercise our

discretion to address the third justiciability element as well.


                                                             G
No. 43790 -2 -II




Hospital Corp. of Marion County v. Marion County, 470 N.E.2d 1348, 1353 ( Ind. App. 1984).

But the       County' s   sole citation    to Health &          Hospital     Corp. is      not persuasive.      First, Health &


Hospital Corp. is a nonbinding opinion from another state in which the court did not apply the

same justiciable controversy test that we apply in Washington, and second, the amounts at issue

were much         higher than the       amounts claimed          here.   470 N.E. 2d        at   1353.   In Health & Hospital


Corp., nearly one million dollars was at issue for the year 1978, and over one million dollars was

at    issue for   each of   the   years   1979, 1980,          and   1981.    470 N.E. 2d        at   1353.   Here, as the State


points    out,    the   amount     of   money         at    issue is far lower.           According to the County' s own

declarations,      past claims against         the Judicial Branch       average         less than $ 17, 000   a year— nowhere




near    the   one million     dollars that     created a substantial         interest in Health & Hospital           Corp.   The

                                                                                  5
County' s      arguments and cited        authority         are unpersuasive.




           As     in Diversified Industries,                the County presents a question of an unpredictable

contingency because the County' s action did not include facts of any financial liability claim that

it presently faced.        82 Wn.2d       at   815.        The County does not cite any cases where aggregation of

several past claims have been sufficient to create an " actual, present and existing dispute, or the

mature seeds of one."             Republican     Party,       141 Wn.2d      at   284.    And we do not agree that the trial


court abused its discretion in refusing to find that the amount of money at issue here creates

     direct and substantial" interests. Republican Party, 141 Wn.2d at 284. We hold that the County



 5
     Additionally, the County cites several more out -of-state cases to support its argument that state
                                                          -
 constitutional      issues   are well    suited      for    declaratory judgments.           But for a court to reach these

 grounds, it must first find that the justiciability elements are met and here the County cannot
 overcome this hurdle.    The County fails to explain how its case resembles the cited cases, why
 established Washington case law is insufficient, or how the court abused its discretion in ruling
 that the justiciability elements were not met.


                                                                     7
No. 43790 -2 -II




failed to meet its burden of showing that the trial court abused its discretion in concluding that

the County failed to meet the four justiciability elements and, thus failed to present a justiciable

controversy.


                                        B. Major Public Importance Exception


          Alternatively, the County argues that if we determine that the justiciability elements were

not met, we should hold that declaratory judgment would have been proper because it presents an

issue of major public importance regarding the constitutional status of the Judicial Branch in the

context of tort or contract litigation. We disagree.


          If the four justiciability elements are not met, a court may still enter declaratory judgment

if the issue is one of major public importance. Republican Party, 141 Wn.2d at 284. Whether an

issue is one of major public importance depends on " the extent to which public interest would be

enhanced     by    reviewing the        case."   Snohomish County v. Anderson, 124 Wn.2d 834, 841, 881

P. 2d 240 ( 1994) (        emphasis omitted).          Courts will apply the major public importance exception

only in rare cases where the public' s interest is overwhelming and the issue has been adequately
briefed   and argued.        To -Ro Trade Shows v. Collins, 144 Wn.2d 403, 416, 27 P. 3d 1149 ( 2001),

cent.   denied, 535 U. S. 931 ( 2002).                For the exception to apply, the dispute must also be ripe.

League of Educ. Voters, 176 Wn.2d                     at   820.   Whether a claim is ripe depends on whether the


issues    raised   are "   primarily legal, and do not require further factual development, and if the

challenged action          is final."    dafar   v.    Webb, 177 Wn.2d 520, 525, 303 P. 3d 1042 ( 2013).    If   a
No. 43790 -2 -II



claim    is    speculative and   hypothetical, it is        not ripe.    Diversified Indus., 82 Wn.2d        at    815.   We


also consider the hardship to the parties of withholding court consideration. Jafar, 177 Wn.2d at

525.


          The County asserts that its case is ripe, arguing that because the state' s 39 counties spend

hundreds of thousands of dollars each year on such claims, its case " surely shows that the present

action relates        to anything but   a   hypothetical     or speculative matter."      Br. of Appellant at 17 -18.


But even if we agreed that the County' s claim was ripe for review, the County fails to show that

the public' s interest is overwhelming.

          The County does not compare its case to other cases where the major public importance

exception       has   applied.   Washington courts have applied this exception in cases involving, for

example,        eligibility to   stand      for    public   office,     freedom   of   choice   in    elections,    and   the



constitutionality        of excise   taxes.       Coal. for the Homeless, 133 Wn.2d             at   917.   Clearly issues

involving elections, public office, and constitutionality of taxes affect every citizen in the State,

while the County' s case here really affects only the corresponding budgets of the County and the

State.    A declaratory judgment here ultimately would not even directly affect citizens who bring

claims against the Judicial Branch because the only issue presented is who is financially

responsible: the County or the State.

              We hold that the trial court did not abuse its discretion in ruling that the County' s case

does not present an issue of major public importance.




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No. 43790 -2 -II



        We affirm.




                                          Johanson, J.
We concur:




               a

                     xuntJ.




                   Worswick, C. J.




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