                                                                        FILED
                                                                    OCTOBER 21,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division ill 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


FRIENDS OF NORTH SPOKANE                      )
COUNTY PARKS,                                 )         No. 32056-1-111
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )
SPOKANE COUNTY; FRED MEYER                    )
STORES, INC.; and, STAR SAYLOR                )         PUBLISHED OPINION
LLC,                                          )
                                              )
                     Respondents.             )

       SIDDOWAY, C.J.      After the Board of County Commissioners of Spokane County

(Board) amended its acceptance of dedicated parkland to pennit construction of a road

serving an adjoining residential development, Friends of North Spokane County Parks, an

association of county taxpayers and itself a county taxpayer, challenged the legality of the

Board's action. The superior court dismissed Friends' action on standing and substantive

grounds, for failure to state a claim on which relief could be granted. Friends appeals the

dismissal and the superior court's denial of its motion to disqualify the Spokane County

prosecutor from representing an affiliate of the grantor of the parkland.

       In concluding that Friends did not have standing, the trial court relied on a

decision involving distinguishable facts, whose overly-narrow characterization of
No. 32056-I-III
Friends olN. Spokane County Parks v. Spokane County


taxpayer standing we reject. Friends adequately alleged taxpayer standing under

controlling Washington case law. While the trial court properly denied Friends'

disqualification motion and correctly dismissed claims alleging breach of trust and an

unconstitutional gift of public property, Friends' complaint adequately stated a claim for

breach by the county of terms of a 200 I dedication of the parkland. We affirm in part,

reverse in part, and remand.

                    FACTS AND PROCEDURAL BACKGROUND

       In 200 I, in connection with the development by Roundup Company of real

property near the corner of U.S. Highway 395 and Hastings Road for construction of a

Fred Meyer store, Roundup offered 3.99 acres of undeveloped land directly south of the

store site to Spokane County for use as a park. The county was receptive, So in August

2001 the Wilmington Trust Company, which held title to the 3.99 acres as security,

conveyed the land to the county. The deed required that the land be held "only as a

natural, community, or regional park" and prohibited "vehicular ingress or egress from

the property" except from Standard Drive. Clerk's Papers (CP) at 62. The county

accepted the donation by resolution, subject to these conditions. After accepting and

receiving the property, the county maintained what came to be known as "Freddy Park"

as a "natural, unimproved park." CP at 70.

      In 2007, Star Saylor Investments LLC, a private real estate developer that owns

property located directly south of Freddy Park, applied to the county for a preliminary

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No. 32056-1-III
friends ofN Spokane County Parks v. Spokane County


plat. A county hearing examiner approved the application subject to conditions, one of

which was that before the final platting of the 34th lot, "'the applicant shall secure and

construct a second ingress/egress roadway to serve the proposed development.'" CP at 5.

The condition stated that "'[t]he proposed second access must be dedicated through the

park land owned by Spokane County north of the site. '" Id. at 5-6.

       The county's Board of County Commissioners favored allowing construction of

the second ingress/egress roadway through Freddy Park. Out of concern that its authority

to approve construction of a road might be questioned in light of the 2001 deed and

restrictions, the county asked that Roundup and its affiliates Fred Meyer Inc. and Fred

Meyer Stores Inc., whom the county referred to collectively as "the Fred Meyer Parties,"

execute an amendment to the 2001 deed allowing the establishment and construction of a

public road. The Fred Meyer Parties agreed, but only if the county would represent and

defend them in the event of litigation resulting from the amendment. The county agreed

that it would. The county and the Fred Meyer Parties then executed an amendment to the

restrictions imposed by the 2001 conveyance to permit construction ofa road '''as

depicted in the attached Exhibit "C"'" to their amendment. CP at 94. Exhibit C depicted

the road as follows:




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No. 32056-1-III
Friends ofN Spokane County Parks v. Spokane County




                     i
                     I

                     \..----'---­
             ~       r--­




CP at 110.

       In 2013, Friends of North Spokane County Parks, a nonprofit corporation, sued

Spokane County, Fred Meyer Stores Inc. (Fred Meyer), and Star Saylor. It sought a

declaratory judgment that the county could not approve construction of a road through

Freddy Park, and to enjoin construction. It asserted standing based on the fact that it and

its members were Spokane County taxpayers; that its members lived near, and were

interested in protecting and preserving the park; and that its request that the state's

attorney general take action to prevent the construction had been declined.

       Friends' complaint contended that the county commissioners' actions amending

the resolution and approving the road were illegal in light of the original deed

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No. 32056-1-111
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restrictions, which it alleged the county had no authority to change; that the county had

no authority to renege on alleged trust duties; that the amendment could not be effective

because, according to records of the county, the original grantor, Wilmington Trust, no

longer existed as an entity; and that for the county to provide Star Saylor with a road

through Freddy Park would constitute a gift of public property or funds in violation of

article VIII, section 7 ofthe Washington Constitution.

       Star Saylor soon moved the trial court to dismiss the complaint pursuant to

CR 12(b)(6) for failure to state a claim on which relief could be granted. After the county

and Fred Meyer both appeared through the Spokane County Prosecuting Attorney to join

in the motion, Friends moved to disqualify the prosecutor from representing Fred Meyer,

alleging a conflict of interest.

       The trial court denied Friends' motion to disqualify the county prosecutor and

granted Star Saylor's motion to dismiss Friends' complaint. In dismissing the complaint,

the court ruled:

               1. Friends has not alleged and can not allege that it is: (a) a grantee
       or grantor; or (b) a successor to a grantee or grantor with respect to the
       2001 deed between Wilmington Trust Company and Spokane County.
               2. Friends has not alleged and can not allege facts sufficient to
       confer taxpayer standing because it has not alleged and can not allege a
       taxpayer cause of action, nor that Friends pays the type of taxes "funding"
       the project that is the subject matter of this action.
               3. Accordingly, Friends does not have standing to pursue Counts I­
       S, as alleged in the Amended Complaint.
               4. Further, Friends has not alleged and can not allege facts sufficient
       to pursue a claim under Article VIII, section 7 of the Washington State

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No. 32056-I-III
Friends ofN Spokane County Parks v. Spokane County


       Constitution (Count 6 of the Amended Complaint), because there has been
       no transfer or public property and there is no donative intent.

CP at 213-14. Friends timely appealed.

                                         ANALYSIS

       Friends assigns error on appeal to the trial court's orders dismissing its complaint

under CR 12(b)(6) and denying its motion to disqualifY the county prosecutor from

representing Fred Meyer. It argues (1) that it has taxpayer standing; (2) that "[u]sing

Freddy Park for a roadway would violate the terms of the deed under which the County

accepted Freddy Park, which specifically limits the uses of the park"; (3) to use Freddy

Park "for a roadway for a private developer ... [or] for any other purpose ... would be a

violation of Art. VIII, Section 7"; and (4) the amendment document was "void because

the Grantor did not have any interest in the property at the time." Br. of Appellant at 8.

It argues that the county prosecutor should have been disqualified on account of a

nonconsentable conflict of interest.

       We address the issues in tum.

                                       1. Taxpayer Standing

       "Standing is a 'party's right to make a legal claim or seek judicial enforcement of

a duty or right.'" State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (2007) (quoting

BLACK'S LAW DICTIONARY 1442 (8th ed. 2004». "It is the responsibility of the

complainant clearly to allege facts demonstrating that he is a proper party to invoke


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No. 32056-1-II1
Friends ofN Spokane County Parks v. Spokane County


judicial resolution of the dispute and the exercise of the court's remedial powers." Warth

v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

       Friends alleged in support of its standing that

       7. 	    The membership of Friends consists of state of Washington and
               Spokane County taxpayers who live near, and are interested in,
               protecting and preserving Freddy Park.
       8. 	    Friends, in its own right, is also a Washington taxpayer to the state
               and to Spokane County as the result of payment of Washington and
               Spokane County sales taxes.
       9. 	    Plaintiff has made a request of Attorney General of Washington to
               take the action sought in this case. 	The essence of the letter is this:
                      By this letter Friends requests that you take action to
                      prevent Spokane County from violation of law
                      regarding use of Freddy Park for a secondary access
                      road for the benefit of a real estate developer.
       10. 	   By letter dated January 17,2013, the Washington Attorney General,
               by Jeffrey T. Even, Deputy Solicitor General, declined to take action
               on Plaintiffs request.

CP at 19-20.

       The trial court's reasons for concluding that Friends lacked standing were, again,

that it was not a party or a successor in interest to the 2001 deed between Wilmington

Trust Company and the county, and it had not and could not allege facts establishing

taxpayer standing. Friends concedes it is not a party to the deed. At issue is only

whether its complaint supports its taxpayer standing. We review questions of standing de

novo. 	 Link, 136 Wn. App. at 692.

       Although the standing doctrine generally "prohibits a litigant who is not adversely

affected by a public act or statute from asserting the legal rights of another," Washington

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     No. 32056-1-111
     Friends 0/ N Spokane County Parks v. Spokane County


     courts have long recognized the right of an individual or entity "to challenge

     governmental acts based solely upon the litigant's status as a taxpayer." Greater Harbor

     2000 v. City o/Seattle, 132 Wn.2d 267, 281,937 P.2d 1082 (1997); accord State ex reI.

j
   Boyles v. Whatcom County Superior Court, 103 Wn.2d 610, 614, 694 P.2d 27 (1985);

I
   Wash. Pub. Trust Advocates ex rei. City 0/ Spokane v. City 0/ Spokane, 117 Wn. App.

     178, 182,69 P.3d 351 (2003); Robinson v. City a/Seattle, 102 Wn. App. 795,804-05, 10

     P.3d 452 (2000). I

            Washington courts have held that municipal taxpayers have standing to challenge

     not only the disposition of municipal funds, but also municipal property. In Miller v. City

     o/Pasco, 50 Wn.2d 229,310 P.2d 863 (1957), for example, the court held that a taxpayer

     could sue, seeking a declaratory judgment as to the constitutionality of a statute

     authorizing the city to lease its property for parking lot purposes and to enjoin the city

     from leasing or disposing of the property. In Donald v. City a/Vancouver, 43 Wn. App.

     880, 719 P .2d 966 (1986), the court held that the plaintiff lacked standing to challenge the


            1 An exception is cases involving a reduction of taxes, in which courts have been
     reluctant to grant taxpayer standing. Fed. Way Sch. Dist. No. 210 v. State, 167 Wn.2d
     514, 529,219 P.3d 941 (2009) ("While taxpayers may have standing to protest high taxes
     or improper expenditures, this court has said it is doubtful there is taxpayer standing to
     protest lower taxes or limits on taxation."); Walker v. Munro, 124 Wn.2d 402,419-20,
     879 P.2d 920 (1994) ("Although a taxpayer need not allege a personal stake in the matter,
     but may bring a claim on behalf of all taxpayers, it is more questionable whether taxpayer
     standing is appropriate to protest legislation which, by the Petitioners' own claims, will
     decrease state expenditures and make the raising of taxes more difficult." (Citation
     omitted.)).

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I
i
     No. 32056-1-111
     Friends ofN. 	Spokane County Parks v. Spokane County


1	   city's failure to comply with a deed condition requiring use of donated property as a park,

I    but only because the grantor imposed conditions subsequent that only the grantor, not the

     public, could enforce: the grantor did not dedicate the property to public use. The court

     recognized that had the grantor's conveyance been a dedication, then the plaintiff, as a

     resident "and, presumably, a taxpayer, could dispute the City's action, because taxpayers

     of a local government can hold the governmental entity to dedicated uses." Id. at 886.

            Star Saylor nonetheless relies on Dick Enterprises, Inc. v. King County, 83 Wn.

     App. 566, 572-73, 922 P .2d 184 (1996), for the proposition that "[i]n order to bring a

     taxpayer suit ... [a]mong other things, the plaintiff must show that it pays the type of

     taxes funding the project [that is the subject matter of the action]." It persuaded the trial

     court that because the ingress/egress road would be constructed by Star Saylor, there was

     no public funding to which Friends' taxes would be applied.

            Dick Enterprises was a challenge to an award of a public works contract by a

     disappointed bidder, Dick/Cree Joint Venture. Dick/Cree-the second lowest bidder for

     a county contract---contended that the lowest bid was nonresponsive to terms of the

     county's solicitation of bids. It did not commence suit until after the contract between the

     county and the successful bidder had been signed. The trial court rejected Dick/Cree's

     bidder standing to challenge performance of the contract based on the primary policy of

     competitive bidding statutes to protect the public purse, with "[t]he bidder's interest in a

     fair forum [being] secondary." Id. at 569. Reasoning that "courts may refuse to

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     No. 32056-I-III
     Friends ofN. Spokane County Parks v. Spokane County


     recognize a cause of action where the lawsuit would work against the purposes of the




I
I

     underlying statute," it held that "[p]rivate suits are motivated by the bidder's desire to

     rebid and improve its chances to obtain an award," and that "[t]he best way to ensure that

     lawsuits are brought in the public interest is to restrict standing to those whose rights are

     at stake-the taxpayers." ld at 570.

1           The court's problematic statement about taxpayer standing was made later in its

     decision, where it summarily rejected Dick/Cree's alternative argument that even if

     public policy prevented it from suing as an unsuccessful bidder, it had adequately pleaded

     a taxpayer's suit. The court pointed out that Dick/Cree had not shown that it requested

     action by the state's attorney general before bringing suit and that "[a]mong other things,

     the plaintiff must show that it pays the type of taxes funding the project." ld. at 573. For

     the quoted proposition, it cited as authority only 18 Eugene McQuillin, The Law of

     Municipal Corporations § 52.12 (3d ed. rev. vol. 1993). Consistent with Dick

     Enterprises, the cited section of the 1993 McQuillin treatise states that taxpayer standing

     requires that a taxpayer "be a contributor to the particular fund from which public monies

     are or will be expended"-but the only authority it cites for the proposition is a 1989

     decision of the Supreme Court of Hawaii. 18 MCQUILLIN, supra, § 52.12, at 20,23 n.14

     (citing Haw. 's Thousand Friends v. Anderson, 70 Haw. 276, 768 P.2d 1293 (1989».

            No other Washington decision requires,as a condition of taxpayer standing that the

     plaintiff trace the source of funding for a challenged expenditure to the type of taxes he or

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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


she pays. And states vary in the nexus they require between a plaintiffs status as a

taxpayer and the subject matter of his or her suit. A recent law review article surveying

the permissive taxpayer standing doctrines in place in most states (as contrasted with

restrictive standing rules applied in federal court) discusses different nexus requirements.

It identifies only Arkansas, Iowa, Maine, and Minnesota as examples of those states that

limit standing to challenge a state expenditure involving a specific fund to a taxpayer who

has paid into that fund. Joshua O. Urquhart, Disfavored Constitution, Passive Virtues?

Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing

Doctrines, 81 FORDHAML. REv. 1263, 1279 nn.108 & 119 (2012). It characterizes other

states as requiring that the plaintiff be challenging government action that "theoretically

affects his or her tax burden" or "that has the potential to affect his or her tax burden,

even if only in a minute way." Id at 1278-79,1281. It characterizes "a handful of

states" as "allow[ing] taxpayers to challenge virtually any government conduct,

regardless of how it affects state taxpayer dollars," observing that "[t]axpayer actions in

these jurisdictions are little more than citizen lawsuits with the extra requirement that the

plaintiff has paid taxes." Id at 1281-82.

       Review of Washington cases convinces us that Dick Enterprises' reliance on

McQuillin to require that a taxpayer plaintiff paid the tax that funds a challenged

government action was inconsistent with controlling Washington case law. This becomes

clear from review of a long line of decisions distinguishing attempted taxpayer challenges

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No. 32056-1-III
Friends of N. Spokane County Parks v. Spokane County


to allegedly illegal government actions from challenges based on other objections not

involving illegality.

         A litigant seeking to challenge a discretionary governmental      act~   as opposed to an

allegedly unlawful act~ must show a special injury. In those cases, the plaintiff taxpayer

"must show that he or she has a unique right or interest that is being violated, in a manner

special and different from the rights of other taxpayers." Am. Legion Post No. 32 v. City

of Walla Walla, 116 Wn.2d 1,7,802 P.2d 784 (1991); Kightlinger v. Pub. Vtil. Dist. No.

1 ofClark County, 119 Wn. App. 501, 81 P.3d 876 (2003), review granted and case

dismissed, 152 Wn.2d 1001 (2004), rev'd on other grounds by Okeson v. City ofSeattle,

159 Wn.2d 436, 452 n.5, 150 P.3d 556 (2007); see, e.g., In re Petition ofCity of

Bellingham, 52 Wn.2d 497,499,326 P.2d 741 (1958) ("The mere fact that a resident

taxpayer and citizen disagrees with a discretionary decision of the city council provides

no basis for a suit challenging the validity of the council's action.").

         When it comes to taxpayer plaintiffs challenging the legality of a governmental

act~   however, Washington courts have repeatedly held that no special injury need be

shown. And the reasoning of those decisions reveals an appreciation of the role that

taxpayer suits play in correcting government transgressions and that no nexus is required

between the type oftaxes paid by the taxpayer plaintiff and the challenged act.

         In Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931), the port of Seattle,

accused of violating state law by failing to require its lessee to post a performance bond,

                                              12 

No. 32056-1-III
Friends ofN Spokane County Parks v. Spokane County


argued that it could not be restrained at the instance of a taxpayer because there was no

showing that its omission would result in special damage to the taxpayer or general

damage to the taxpaying public. Rejecting the port's argument, the court observed that

"[ c]ourts generally hold that, if the illegal acts of a municipal corporation are such as to

increase taxes or violate public rights, any taxpayer may bring suit for injunction, and it

is not necessary for him to show special pecuniary damage to himself, general damage to

the taxpaying public being held sufficient." Id. at 622 (citing 4 JOHN F. DILLON,

COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS                §§ 1579-1587 (5th ed.

1911».

       In 1954, State ex rei. Lemon v. Langlie, 45 Wn.2d 82, 88,273 P.2d 464 (1954)

rejected the argument that a private citizen or taxpayer could not maintain an action

against state officers on a matter of public concern '''except upon a showing of some

special interest or damage different than that suffered by the public at large.'"

Significantly, it did so after surveying 10 prior decisions that the respondents argued

required a taxpayer plaintiff to show a direct pecuniary injury and observing that the

same requirement of personal pecuniary effect had been rejected 7 years earlier in Reiter

v. Wallgren, 28 Wn.2d 872, 184 P.2d 571 (1947). It quoted Reiter as stating, '''We never

have held that, in a proper case where the attorney general refused to act to protect the

public interest, a taxpayer could not do so.'" Langlie, 45 Wn.2d at 88 (quoting Reiter, 28

Wn.2d at 876).

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No. 32056-I-III
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       A decade later, the court in Fransen v. State Board ofNatural Resources, 66

Wn.2d 672,676,404 P.2d 432 (1965) recognized the right of taxpayers to sue to enjoin

the Board of Natural Resources from selling forest lands to a city, even though the

taxpayer plaintiffs were "not persons whose property rights or interests will be affected

by the sale of the lands," but merely "taxpayers, whose interest in the subject matter of

the action is no different from that of other taxpayers."

       Relying on Fransen, the court in Calvary Bible Presbyterian Church ofSeattle v.

Board ofRegents of University of Washington, 72 Wn.2d 912,917,436 P.2d 189 (1967)

granted standing to church ministers, but denied standing to the churches themselves,

based on the requirement that "plaintiff must at least be a taxpayer." And a taxpayer had

standing in Boyles, 103 Wn.2d at 611 to enjoin county officials from assigning prisoners

to a work release program that mandated religious activities. Since the plaintiff "sought

and [had] been denied enforcement of her complaint by the Attorney General" the court

found standing based solely "on the basis of taxpayer status." Id. at 615. The court

emphasized that "taxpayer standing has been given freely in the interest of providing a

judicial forum when this state's citizens contest the legality of official acts of their

government." Id. at 614.

       The rationale for requiring only taxpayer status and an unsuccessful demand that

the attorney general commence action, gleaned from almost a century's worth of

Washington case law, is that all taxpayers are presumed harmed where a government

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No. 32056-1-111
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entity acts unlawfully. In Barnett, 162 Wn.2d at 623, the court reasoned that where a city

"enter [s] into an illegal or ultra vires contract, and ignores the statutory safeguards ... , it

is a fair presumption that every taxpayer will be injured in some degree by such illegal

act." This court observed in Eugster v. City ofSpokane, 139 Wn. App. 21, 28, 156 P.3d

912 (2007) that while an individual taxpayer must generally show special injury to sue a

municipality, "every taxpayer is presumed injured if the city acts illegally." In Mincks v.

City ofEverett, 4 Wn. App. 68, 73,480 P.2d 230 (1971) the court held that the taxpayer

plaintiff had standing to challenge the legality of a contract given that "every taxpayer

will be fairly presumed to be injured when a municipal corporation undertakes to enter an

illegal contract."

       The Washington Supreme Court's most recent pronouncement on the issue of

taxpayer standing is its split decision in Greater Harbor. The justices' reasoning, while

divided as to other matters, reveals broad support for recognizing taxpayer standing to

challenge illegal government acts. At issue was whether Greater Harbor, a private

interest group consisting of a Washington nonprofit corporation and individual taxpayers,

had standing to challenge the city's decision to grant preliminary approval of a petition

by the port of Seattle to vacate several acres of public streets. Greater Harbor, 132

Wn.2d at 269,271.

       The lead opinion, signed by two justices, ruled that the plaintiffs lacked standing

because even though they were taxpayers, they were not abutting property owners. Id. at

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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


284. It cited Boyles for the principle that "taxpayer standing has been given freely in the

interest of providing a judicial forum for citizens to contest the legality of official acts of

their government," but characterized Greater Harbor as having "[a]t most ... merely

disagree[d]" with the decision to vacate based on its interpretation of the city's code. Id.

at 281-82. Three justices concurred in the result, but on ripeness grounds, implicitly

rejecting the conclusion of the two-member lead opinion that the plaintiffs lacked

standing. Id. at 285 (Johnson, J., concurring). Another two justices agreed dismissal was

appropriate because there had been no violation of the city's code, but explicitly

disagreed that the plaintiffs lacked standing, emphasizing that "[t]axpayers clearly should

have standing to complain about the legality of the City's governmental act." Id. at 287

(Madsen, J., concurrence/dissent). Finally, two justices dissented on the basis that

taxpayer standing was improperly denied, and that the city had violated its ordinance. Id.

at 290 (Sanders, 1., dissenting).

       Aside from Dick Enterprises, the only other authority Star Saylor cites in support

of its contention that Friends must allege that its taxes will fund some aspect of the

challenged roadway are one concurrence and one dissent by members of the Washington

Supreme Court, both of which quote Dick Enterprises. See City ofSeattle v. McKenna,

172 Wn.2d 551, 565, 259 P.3d 1087 (2011) (Alexander, 1., concurring); Greater Harbor,

132 Wn.2d at 299 (Sanders, 1., dissenting). But the statement quoted by both justices is,

for present purposes, a neutral one: that a taxpayer's complaint must allege both a

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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


taxpayer's cause of action and facts supporting taxpayer status. Star Saylor urges us to

view the statement as weighing in its favor, arguing that "[a] taxpayer cause of action is a

cause of action in which there is an alleged burden on taxpayers associated with the

government action." Br. ofResp't Star Saylor at 9. But Dick Enterprises does not define

"taxpayer's cause of action" that way, and neither Justice Alexander nor Justice Sanders

appear to share Star Saylor's understanding of "taxpayer's cause of action."

Substantively, neither Justice Alexander's concurrence in McKenna nor Justice Sanders'

dissent in Greater Harbor support Star Saylor's position on standing.

       Viewed as a whole, Washington cases recognize a plaintiffs standing to challenge

the legality of governmental action based solely upon the plaintiffs status as a taxpayer

and his or her prior demand on the attorney general. Friends' complaint alleged the

required prior demand and challenges the legality of the county's reliance on the 2012

amendment to violate restrictive covenants contained in what it contends was a 2001

dedication of a public park use. The trial court erred in dismissing Friends' complaint for

lack of standing to the extent that it alleged illegal action. 2



        2 Star Saylor devoted a portion of its brief to argument that we should affirm the
trial court because Friends failed to assign error to any of the court's findings of fact,
which it contends is required by RAP 10.3(g). A motion to dismiss a complaint pursuant
to CR 12(b)(6) does not call upon the trial court to determine issues of fact and we review
its decision de novo. Findings of fact and conclusions of law are therefore superfluous.
Implicitly, the requirement of RAP 10.3(g) applies only when a trial court's findings are
appropriately entered and necessary to our review.

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Friends ofN Spokane County Parks v. Spokane County


                                    II. Deed Restrictions

      Turning to the substantive sufficiency of Friends' complaint, we first state the

standard of review. "A CR 12(b)(6) motion questions only the legal sufficiency of the

allegations in a pleading." Brown v. MacPherson's, Inc., 86 Wn.2d 293,298 n.2, 545

P.2d 13 (1975). It cannot be granted unless "it appears beyond a reasonable doubt that no

facts exist that would justifY recovery." Cutler v. Phillips Petroleum Co., 124 Wn.2d

749, 755, 881 P.2d 216 (1994). The court "accept[s] as true the allegations in a plaintiffs

complaint and any reasonable inferences therein." Reid v. Pierce County, 136 Wn.2d

195,201,961 P.2d 333 (1998).

      Documents whose contents are alleged in a complaint but not attached may be

submitted for consideration in ruling on a CR 12(b)(6) motion without converting the

motion into one for summary judgment, especially ifthe parties do not dispute the

authenticity ofthe documents and they do not constitute testimony. FutureSelect

Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 175 Wn. App. 840, 865-66 & n.63,

309 P.3d 555 (2013) (citing Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 726 & n.45,

189 P.3d 168 (2008) (relying on federal authority)), aff'd, 180 Wn.2d 954,331 P.3d 29

(2014). We review de novo a trial court's order granting a CR 12(b)(6) motion to

dismiss. Reid, 136 Wn.2d at 200-01.




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No. 32056-1-III
Friends ofN. Spokane County Parks v. Spokane County


       Friends' complaint includes the following allegations (among others) in support of

its contention that the restrictions originally imposed on the use of Freddy Park by the

2001 deed and restrictions may not be amended by the county and Fred Meyer:

       12. 	   Prior to July 24,2001, Roundup Company ... approached Spokane
               County with its desire of donating a 3.99 acre parcel of property to
               the County to be used only as a "County~owned and operated natural
               or community Park."
       13. 	   Spokane County, by Resolution Number 1-0660, accepted the
               donation on July 24, 2001.
       14. 	   Spokane County specifically agreed to accept the property for park
               purposes ... that is for "a natural, community or regional park"
               without roads passing through Freddy Park.

       26. 	   On November 7,2012, Spokane County adopted Resolution 12-0910
               which authorized the County to sign a document entitled
               "Amendment to Restrictions on Use and Development of Property"
               pursuant to which Fred Meyer Parties and Spokane County will
               amend Exhibit B to the documents entitled "Deed with Covenant
               and Joinder with Warranties and Title to Real Property" ....

       30. 	   Spokane County and Fred Meyer Stores, Inc. have signed a 

               document entitled "Amendment to Restrictions on Use and 

               Development of Property" dated November 19,2012. 


       57. 	   . .. [T]he County cannot make the park property available for a road
               because to do so would violate the "Restrictions on Use and
               Development of Property" as contained in Exhibit B to the Deed
               filed with the Spokane County Auditor on August 22, 2001 ....
      58. 	    The changes to the deed restriction set forth in the document filed
               April 4, 2013 are not effective and are void or in excess of the
               authority of the County Commissioners.

      60. 	    . .. The road through the park for use by the Developer is not a park
               use. Indeed, a road through the park for any reason, except for the
               purposes of the park would not be a park use.


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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


CP at 20-28.

       Also before the trial court was the deed itself, which read in material part:

                The Grantor, WILMINGTON TRUST COMPANY, ... not in its
       individual capacity, but solely as Owner Trustee under the FMS Trust
       1997-1 ... bargains, sells and conveys to SPOKANE COUNTY, ...
       Grantee, the real property described on the attached Exhibit A,
       TOGETHER WITH all the tenements, hereditaments and appurtenances
       belonging thereto, and the reversion and reversions, remainder and
       remainders, rents, issues and profits thereof, and all the estate, right and
       title to the property whether in law or in equity, and subject to the
       Restrictions on Use and Development of Property as stated in Exhibit B,
       and the encumbrances shown on Exhibit C.
                TO HAVE AND TO HOLD all and singular the above mentioned
       and described real property, together with appurtenances thereof, unto the
       Grantee, and its heirs, successors and assigns forever.

CP at 53 (boldface and underline omitted).

       The incorporated "Restrictions on Use and Development of Property" set forth in

the attached Exhibit B read in their entirety;

                The herein described real property shall be held, conveyed, sold, and
       improved only as a natural, community, or regional park. This condition
       and restriction of use shall constitute a covenant and encumbrance which
       shall run with the land and shall be perpetually binding upon Grantee, its
       successors-in-interest and assigns, and all parties having or acquiring any
       right, title, or interest in, or to, any part of the subject property.
                There shall be no vehicular ingress or egress from the property to the
       adjacent property owned by Grantor, Parcels A and G ofBSP-58-97.
       Vehicular access to the property shall be only from Standard Drive.
               A pedestrian walkway to Parcel G may be allowed subject to
       Grantor's review and approval of the location, design, and construction of
       the walkway.
                Grantee shall install and maintain a fence within the boundaries of
       the property along the adjacent boundaries of Parcels A and G. The design,
       materials and height of the fence shall be subject to approval by Grantor.

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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County



CP at 62.

       The Board's Resolution No. 1-0660, adopted in July 2001, recited the

circumstances and terms of the proposed deed and provided:

               NOW, THEREFORE, BE IT HEREBY RESOLVED ... that the
       Board does hereby accept the donation of the 3.99-acre parcel of land from
       Roundup Company subject to the terms and conditions set forth within the
       recital herein above and in conjunction herewith does authorize either the
       Chairman of the Board of County Commissioners of Spokane County or a
       majority of the Board to execute at another than an open meeting any and
       all necessary documents in connection with the donation.

CP at 65 (boldface omitted).

       Finally, the Board's Resolution No. 12-0910, adopted in November 2012,

described the county hearing examiner's condition requiring that Star Saylor secure a

second ingress/egress through Freddy Park, stated that the county, in consultation with its

own traffic engineers, the Washington State Department of Transportation, and the local

fire district had determined that the road connection would be beneficial to area traffic

circulation, and went on to provide:

             WHEREAS, a question has arisen whether the existing restrictive
      covenant language in the above recital would permit the establishment and
      construction of a public road across the Subject Real Property. To avoid
      any issues regarding interpretation of the restrictive covenant, the FRED
      MEYER PARTIES and Spokane County wish to amend the restrictive
      covenant to allow for the establishment and construction of a public road
      across the Subject Real Property.
             NOW, THEREFORE, BE IT RESOLVED ... that the chairman of
      the Board ... on behalf of the Board and Spokane County, be and is hereby
      authorized to execute that document entitled "AMENDMENT TO

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No. 32056-I-III
Friends ofN. Spokane County Parks v. Spokane County


       RESTRICTIONS ON USE AND DEVELOPMENT OF PROPERTY"
       pursuant to which FRED MEYER PARTIES and Spokane County will
       amend "EXHIBIT 'B'" to documents entitled "DEED WITH
       COVENANT" and "JOINDER WITH WARRANTIES TO TITLE TO
       REAL PROPERTY" ... to provide as follows:
             The herein described real property described shall be held,
             conveyed, sold, and improved as a natural, community, or
             regional park andfor the establishment ofa pu~lic road as
             depicted in the attached Exhibit "e." This condition and
             restriction of uses shall constitute a covenant and
             encumbrance which shall run with the land and shall be
             perpetually binding upon the Grantee, its successors-in­
             interest and assigns and all parties having or acquiring any
             right[,] title, or interest in, or to, any part of the subject
             property.

CP at 70-71 (emphasis added) (boldface omitted). Aside from the italicized language, the

provisions of the 200 I restrictions remained unchanged. The amendment was signed by

the county and Fred Meyer Stores Inc.

       A dedication is generally defined as the devotion of property to a public use by an

unequivocal act of the owner, manifesting an intention that it shall be accepted and used

now or in the future. 11 A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS

§ 33.02, at 308-09 (3d ed. rev. voL 2000). No particular acts, ceremonies, or special

language is required to effectuate a dedication. ld. at 311-12. "A deed given to a

municipality may operate as a dedication where it provides for a particular use of the

property conveyed." ld. at 319-20.

       Dedications may be classified as common law or statutory. Sweeten v.

Kauzlarich, 38 Wn. App. 163, 165,684 P.2d 789 (1984) (citing 26 C.J.S. Dedication § 1,

                                            22 

No. 32056-I-III
Friends 0/N Spokane County Parks v. Spokane County


at 399 (1956)). Statutory dedications operate by way of grant, and in Washington are

provided for by RCW 58.08.015, which provides:

       Every donation or grant to the public ... marked or noted as such on the
       plat of the town, or wherein such donation or grant may have been made,
       shall be considered, to all intents and purposes, as a quitclaim deed to the
       said donee or donees, grantee or grantees, for his, her or their use, for the
       purposes intended by the donor or donors, grantor or grantors, as aforesaid.

       Common law dedications, by comparison, are controlled by common law

principles, and operate by way of equitable estoppel. Kiely v. Graves, 173 Wn.2d 926,

932,271 P.3d 226 (2012). "A common law dedication is the designation ofland, or an

easement on such land, by the owner, for the use of the public, which has been accepted

for use by or on behalf of the public." Richardson v. Cox, 108 Wn. App. 881, 890,26

P.3d 970,34 P.3d 828 (2001).

       To find a dedication, there must be '''(1) An intention on the part of the owner to

devote his land, or an easement in it, to a public use, followed by some act or acts clearly

and unmistakably evidencing such intention; and (2) an acceptance of the offer by the

public.'" Sweeten, 38 Wn. App. at 165 (quoting City o/Seattle v. Hill, 23 Wash. 92,97,

62 P. 446 (1900)). '''[W]hen the intention of the owner to dedicate is clear, manifest, and

unequivocal ... it becomes effective for that purpose.'" City 0/ Spokane v. Catholic

Bishop o/Spokane, 33 Wn.2d 496,503,206 P.2d 277 (1949) (quoting Corning v. Aldo,

185 Wash. 570,576,55 P.2d 1093 (1936)). The burden of proof to establish a dedication




                                             23 

No. 32056-1-III
Friends ofN Spokane County Parks v. Spokane County


is on the party asserting it. Lopeman v. Hansen, 34 Wn.2d 291,294,208 P.2d 130

(1949).

       "[I]f parkland is subject to a dedication, ... any diversion from the dedicated

purpose is illegal." Donald, 43 Wn. App. at 886.

               "It is doubtless the law that, where a person dedicates or donates to a
       city a tract of land, with a restriction upon its use-as for instance, where it
       is so dedicated or donated solely for a park or a public street-the city can
       not legally divert the use of such property to uses and purposes inconsistent
       with the purpose of such grant ..."

Id. (alteration in original) (quoting Seattle Land & Improvement Co. v. City ofSeattle, 37

Wash. 274, 276, 79 P. 780 (1905)). "Property acquired by a municipality by dedication is

the same as any other municipal property, except that it cannot be diverted to any

inconsistent use." llA MCQUILLIN, supra, § 33.65, at 505 (citing, among other

authority, Albee v. Town ofYarrow Point, 74 Wn.2d 453, 459-60, 445 P.2d 340 (1968)).

       While no reported Washington decision has addressed the issue, cases from other

jurisdictions have held that a municipality may not use parkland for a public highway.

See Village ofRiverside v. Maclean, 210 Ill. 308, 323-24, 71 N.E. 408 (1904) (village's

contention that proposed roadway through park would be a "pleasure driveway" was

unsupported by evidence; injunction of construction affirmed on basis that the extension

of roadway through the park "will be a perversion of the use of which the premises ...

were originally dedicated"); City ofSt. Louis v. Bedal, 394 S.W.2d 391,397 (Mo. 1965)

(while proposed roadway would in some ways enhance use of park, it was still a

                                             24
No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


diversion from park uses; "The park was not created for surface traffic."); and see City of

Hermosa Beach v. Superior Court, 231 Cal. App. 2d 295,41 Cal. Rptr. 796 (1964)

(recognizing taxpayer's standing to challenge construction of road across beach property

deeded to city "as a public pleasure ground").

       The fact that the Fred Meyer Parties joined in the amendment does not detract

from Friends' ability to challenge it. "After the dedication is complete, the dedicator

cannot restrict or change the uses for which it was made, or otherwise impose

conditions." llA MCQUILLIN, supra, § 33.10, at 340 (footnote omitted).

       Friends' first four claims for relief seek to enforce the restrictions imposed by

what it contends was an accepted dedication. Accepting as true the allegations of the four

claims, they state a claim on which relief could be granted.

                       III.   Unconstitutional Gift of Public Funds

       Friends also challenges dismissal of its claim that the county's amendment of the

deed restrictions in order to permit construction of ingress/egress for Star Saylor's

development constitutes a gift of county funds to the developer in violation of article

VIII, section 7 of the Washington Constitution, which provides:

       No county, city, town or other municipal corporation shall hereafter give
       any money, or property, or loan its money, or credit to or in aid of any
       individual, association, company or corporation, except for the necessary
       support of the poor and infirm, or become directly or indirectly the owner
       of any stock in or bonds of any association, company or corporation.




                                             25
I

I

     No. 32056-1-III
     Friends ofN Spokane County Parks v. Spokane County


     The manifest purpose of the provision '''is to prevent state funds from being used to

     benefit private interests where the public interest is not primarily served.'" CLEAN v.

     State, 130 Wn.2d 782, 797, 928 P.2d 1054 (1996) (quoting Japan Line, Ltd. v.

     McCafJree, 88 Wn.2d 93,98,558 P.2d 211 (1977)).

            No unconstitutional gift of public property occurs when funds are expended in

     carrying out a fundamental purpose of government. City ofTacoma v. Taxpayers ofCity

     ofTacoma, 108 Wn.2d 679, 702, 743 P.2d 793 (1987). "Outside of expenditures for

     fundamental governmental purposes," article VIII, section 7 requires that we "focus on

     two factors to determine if a gift occurs: consideration and donative intent." Id. (citing

     Gen. Tel. Co. ofNw., Inc. v. City ofBothell, 105 Wn.2d 579,587-88, 716 P.2d 879

     (1986)). A project or program "must be presumed constitutionally valid, and the burden

     of overcoming that presumption lies with those challenging [the public entity's]

     authority." Id.

            Friends' complaint includes the following allegations (among others) in support of

     its contention that amendment of the deed restrictions in order to permit construction of

     ingress/egress for Star Saylor's development constitutes a gift of county funds to the

     developer in violation of article VIII, section 7 of the Washington Constitution:

            23. 	   Star Saylor wants to have Spokane County provide ... it with an[ ]
                    easement th[r]ough the Freddy Park from Standard Drive to the
                    Developer's property adjacent to the Freddy Park southerly property
                    line which will connect with Regina which comes to the Star Saylor
                    property from the west.

                                                  26
No. 32056-1-III
Friends ofN. Spokane County Parks v,. Spokane County



       75. 	   The Spokane County Commissioners desire to assist a private
               developer who intends to build a number of residences south of the
               park and bordering the park property. The Commissioners want to
               allow the Developers to construct a road through the park-the road
               is to be 34 feet wide with the paved portion 24 feet wide.
       76. 	   The proposed roadway is contingent on the construction of the
               development; that is, it is solely for the purposes of the
               development-the proposed development must have the road in
               order to pursue the land use of creation of multiple living units.
       77. 	   What the county intends to do is clearly a violation of Wash. Const.
               Art. VIII, Section 7.

CP at 21-31.

       Friends argues that its allegations that the county commissioners' "desire to assist

a private developer" and that the proposed roadway "is solely for the purposes of the

development" sufficiently allege donative intent and that the trial court was required to

treat its factual allegations as if they were true. Br. of Appellant at 18. Before King

County v. Taxpayers ofKing County, 133 Wn.2d 584, 949 P.2d 1260 (1997), the

Washington Supreme Court had held that donative intent is a "factual issue to be resolved

by the trier of fact." In re Estate ofLittle, 106 Wn.2d 269,288, 721 P.2d 950 (1986).

Before King County, one might have argued-as the dissenting justices in that case did-

that a plaintiff could establish an unconstitutional gift of public funds by demonstrating

the government's donative intent or that it received a grossly inadequate return. See King

County, 133 Wn.2d at 623 (Sanders, J., dissenting). Before King County, one might have

argued, based on earlier decisions, that it was only if the plaintiff could not show


                                             27 

No. 32056-1-111
Friends ofN. Spokane County Parks v. Spokane County


donative intent or gross inadequacy that the trial court should inquire into the adequacy of

the consideration. See id. But King County established that such a view would be

mistaken.

       The seven-member majority in King County held that in assessing whether a

taxpayer has shown that there has been a transfer of property without consideration and

with donative intent, "courts do not inquire into the adequacy of consideration, but

employ a legal sufficiency test," explaining,

       We have been reluctant to engage in an in-depth analysis of the adequacy of
       consideration because such an analysis interferes unduly with governmental
       power to contract and would establish a "burdensome precedent" ofjudicial
       interference with government decision making.

Id. at 597. And "[l]egal sufficiency 'is concerned not with comparative value but with

that which will support a promise"': a question of law. Id. (quoting Browning v.

Johnson, 70 Wn.2d 145, 147,422 P.2d 314, 430 P.2d 591 (1967». When asked at oral

argument whether legal sufficiency was not the test, Friends' lawyer criticized the

majority's opinion in King County as mistakenly applying a contract rule-that "even a

peppercorn" is legally sufficient consideration to support a promise-as inadequately

protecting public assets, a position reminiscent of Justice Sanders' dissent in King

County. Unlike Justice Sanders, we are not free to disagree with the Supreme Court

majority's construction of the Washington Constitution.




                                            28 

No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


       The trial court had before it Resolution No. 12-0910, adopted in November 2012,

which stated that Star Saylor would be required to "'secure and construct'" the roadway

and that the county, in consultation with its own traffic engineers, the Washington State

Department of Transportation, and local fire district 9 had "determined that a road

connection between Hastings Road and Regina Road along the Standard Drive alignment

would be beneficial to area traffic circulation and relieve pressure on the Regina Road/

State Highway intersection." CP at 70. As a matter of law, private construction of a road

that the county concluded would be beneficial to area traffic circulation and would

relieve pressure on a state highway intersection satisfies the low "peppercorn" standard of

legal sufficiency. Cf Northlake Marine Works, Inc. v. City ofSeattle, 70 Wn. App. 491,

507, 857 P .2d 283 (1993 ) (city did not violate the prohibition against gifts of public

property when it conveyed an abandoned railroad right-of-way to private developers in

exchange for development of public trail); CLEAN v. City ofSpokane, 133 Wn.2d 455,

470, 947 P .2d 1169 (1997) ("Although Appellants may view the transaction as an unwise

use of public funds that unduly benefits the Developers, the wisdom of the plan is not for

this court to consider.").

       The court was required to accept facts alleged in Friends' complaint as true but

was "not required to accept the complaint's legal conclusions." Loudeye Corp., 144 Wn.

App. at 717-18. Because Friends' complaint and the documents legitimately considered

by the court revealed legally sufficient consideration, we need not address whether

                                             29 

!
i
I
I    No. 32056-1-111
     Friends ofN Spokane County Parks v. Spokane County

I
j
     making government property available for construction of a roadway serving a residential
I

I    development is a fundamental purpose of government.


I
I
                                      IV.   Ineffective Execution

            Friends' third assignment of error is that the court incorrectly viewed its claim that
1
J    Fred Meyer had no authority to sign the 2012 amendment as failing to state a claim upon
I    which relief could be granted.

            The 2001 conveyance documents, whose contents the court was entitled to

     consider, reveal that the Fred Meyer Parties probably always held the beneficial interest

     in the property, which presumably reverted to them when Wilmington Trust was canceled

     in July 2012 (as recited by Resolution No. 12-0910).3 But a more important and



            3 Wilmington   Trust Company executed the 2001 deed "not in its individual
     capacity, but solely as Owner Trustee" under a business trust. CP at 53. The Fred Meyer
     Parties rather than Wilmington Trust provided warranties of title. A joinder document
     stated that Wilmington Trust held fee title "as security for the performance of obligations
     owed under a synthetic lease financing vehicle" and disclosed that Roundup Company
     was prime lessee under a prime lease with Fred Meyer Stores Inc., Fred Meyer Stores
     Inc. had a prime lease with Fred Meyer Inc., and Fred Meyer Inc. had a prime lease with
     Wilmington Trust. CP at 56.
             A synthetic lease is one under which (as relevant here) a special purpose entity
     (SPE) is formed to be (on paper) the owner and lessor of a facility-often a real estate
     project to be occupied by only the corporate user. The SPE enters into a relatively short­
     term lease (usually not exceeding 10 years) with the high credit rating corporate user and
     the terms of the SPE's agreement with the corporate user provide the mortgage lender
     assurance that its debt is secure while providing the corporate user with essentially all of
     the material benefits and burdens of ownership of the real estate. Anthony J. Luppino,
     Stopping the Enron End-Runs and Other Trick Plays: The Book-Tax Accounting
     Conformity Defense, 2003 COLUM. Bus. L. REv. 35, at 54-55.

                                                  30
No. 32056-1-III
Friends ofN Spokane County Parks v. Spokane County


threshold issue for purposes of the motion to dismiss is that this claim by Friends

amounts to nothing more than a charge that the county made a contract with the wrong

party. Entering into an ineffective contract is not an illegal act.

       To sue the county for this asserted contracting mistake, Friends has standing only

if it alleges a special injury arising from the fact that the county signed an amendment

with the wrong party. But the only injury pleaded by Friends arises from the county's

alleged violation of the 2001 deed, not from its execution of the amendment with the

wrong party. The trial court did not err in concluding that this claim, including standing

to assert it, was inadequately pleaded.

                               V.     Disqualification Motion

       Finally, Friends argues that the trial court erred in concluding that it failed to

demonstrate that the county prosecutor's concurrent representation of the county and

Fred Meyer presented a disqualifying conflict of interest. "Review of a court's decision

to grant or deny a motion to disqualify counsel is a legal question that is reviewed de

novo." Sanders v. Woods, 121 Wn. App. 593, 597, 89 P.3d 312 (2004).

       In the trial court, Friends challenged the prosecuting attorney's dual representation

of the county and Fred Meyer on two grounds: that (1) the representation created a

conflict of interest in violation ofRPC 1.7(a); and (2) even if clients consented to the dual

representation, it was prohibited by law under RPC 1.7(b )(2) in that it would violate

article VIII, section 7 of the Washington Constitution. On appeal, Friends makes the

                                              31 

No. 32056-l-III
Friends 0/N Spokane County Parks v. Spokane County


additional argument that the county lacks statutory authority to provide legal services to a

private party under RCW 36.27.020. Friends' argument regarding the prosecutor's

authority under RCW 36.27.020 is raised for the first time on appeal. Consistent with our

general practice under RAP 2.5(a), we decline to consider it.

       RPC 1.7(a) prohibits a lawyer from representing a client if the representation of

that client "will be directly adverse to another client," or ifthere is a significant risk that

the representation of more than one client "will be materially limited by the lawyer's

responsibilities to another client, a former client or a third person or by a personal interest

of the lawyer." "A lawyer represents conflicting interests when, on behalf of one client,

it is the lawyer's duty to contend that which the lawyer's duty to another client requires

him or her to oppose." In re Marriage o/Wixom, _          Wn. App.         332 P.3d 1063,

1072, motion/or discretionary review filed, No. 90895-8 (Wash. Oct. 15,2014).

       Even where a concurrent conflict exists, an attorney may generally continue

representing both parties by obtaining informed consent in writing from each affected

client. RPC 1.7(b)(4). Nonetheless, "some conflicts are nonconsentable, meaning that

the lawyer involved cannot properly ask for such agreement or provide representation on

the basis ofthe client's consent." RPC 1.7 cmt. 14. One instance in which a conflict is

nonconsentable is if the representation is prohibited by law. RPC 1.7(b)(2).




                                               32 

No. 32056-1-II1
Friends ofN. Spokane County Parks v. Spokane County


                                  A. Conflicting interests

       According to Friends, the prosecutor's dual representation creates an inherent

conflict "in the divided loyalties." Br. of Appellant at 23. Friends relies on Lettley v.

State, 358 Md. 26, 746 A.2d 392 (2000), in which the court held that a lawyer's

simultaneous representation of a criminal defendant and another client, who allegedly

confessed to the crime with which the defendant was charged, created a conflict of

interest depriving the defendant of effective assistance of counsel. The court referred to

"[the defendant's] right to undivided loyalty and assistance." Id. at 43.

       The fundamental error in Friends' analysis of conflict of interest is that it proceeds

from the position Friends believes the county should be taking with respect to the 2001

deed and restrictions: namely, that the county holds the park property in trust, particularly

for nearby county residents, and that Fred Meyer has no continuing interest that enables it

to participate in an amendment. Friends then contrasts that position with the position that

Fred Meyer is taking: that it has a continuing property interest enabling it to amend the

park deed to permit construction of a road. To determine whether a conflict of interest

exists, however, the trial court properly considered the position that the county was in

fact taking, as determined by its duly-elected board of county commissioners.

Washington statutes "essentially require the prosecutor to maintain a certain degree of

allegiance to the county commissioners, insofar as the county commissioners are the




                                             33 

No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County


body that exercises county 'powers' ... and adopts the official county position on legal

issues." Osborn v. Grant County, l30 Wn.2d 615,627,926 P.2d 911 (1996).

       As evidenced by the Board's 2012 resolution and both parties' execution of the

November 2012 amendment, the parties' objectives in this litigation have been aligned.

The prospect that the county might prove to be mistaken in some of the legal positions

taken is not a factor for the court to consider in weighing disqualification. The county is

entitled to be represented by a lawyer willing to advocate for the position adopted by the

county commissioners if there is a basis in law and fact for doing so that is not frivolous.

See RPC 3.1 (lawyer's duty to advance meritorious claims and contentions). The trial

court did not err in concluding that the county's and Fred Meyer's interests were not

conflicting.

                               B. Prohibited representation

       Friends argues in the alternative that the prosecuting attorney should have been

disqualified from representing Fred .Meyer because for the county to provide legal

services to a private party violates article VIII, section 7 of the Washington Constitution.

We have already discussed the fact that after King County we examine only whether the

governmental body received consideration sufficient to support the existence of a

contract, an issue oflaw. The allegations of Friends' complaint and the content of

documents properly considered by the court demonstrate that the county's promise to




                                             34 

No. 32056-1-111
Friends ofN. Spokane County Parks v. Spokane County


defend Fred Meyer in the event of litigation was given in return for legally sufficient

consideration: Fred Meyer's execution of the amendment.

       We affinn the trial court's denial of Friends' motion to disqualify; its dismissal of

count five of Friends' amended complaint, which we construe to allege creation of an

actual trust;4 and its dismissal of count six of Friends' amended complaint, alleging a

violation of article VIII, section 7 of the Washington Constitution. We otherwise reverse

and remand for proceedings consistent with this opinion.




                                              Siddoway, C.J.

WE CONCUR: 




Fearing, J.

 rv--'\ ("\ 

Lawrence-Berrey, J.




       4 Local governments are sometimes referred to by statutes, courts, and text writers
as "trustees" of dedicated land. A helpful discussion of the prevalent theory that the
property rights created are of a nontrust character appears in Hermosa Beach, 231 Cal.
App. 2d at 297. Friends' claim based on the deed restrictions and asserted dedication is
adequately pleaded in the first four counts of its amended complaint.

                                             35
