Wash. Election Integrity Coal. United v. Schumacher

537 P.3d 1058

WASHINGTON ELECTION INTEGRITY COALITION UNITED, a Washington State Nonprofit Corporation; Jerry Schulz, Appellants,

v.Chandra SCHUMACHER, Lincoln County Auditor; Lincoln County, and Does 1-30, inclusive, Respondents.

Washington Election Integrity Coalition United, a Washington State Nonprofit Corporation, Ethan Carlson, and Fred Carpenter, Appellants,

v.Matthew Beaton, Franklin County Auditor, Franklin County, and Does 1-30, inclusive, Respondents.

No. 38884-1-III

consolidated with No. 39157-4-III

Court of Appeals of Washington, Division 3.

Filed September 12, 2023

Ordered Published Date October 24, 2023

Virginia Pearson Shogren, Attorney at Law, 961 W Oak Ct., Sequim, WA, 98382-3069, for Appellant.

Jerry Schulz (Appearing Pro Se), P.O. Box 442, Reardan, WA, 99029, for Plaintiff.

Paul J. Triesch, Keating, Bucklin & McCormack, Inc., P.S., 801 2nd Ave., Ste. 1210, Seattle, WA, 98104-1518, Callie Anne Castillo, Lane Powell, P.O. Box 91302, Seattle, WA, 98111-9402, Erika Ann O'Sullivan, Lane Powell, 1420 5th Ave., Ste. 4200, Seattle, WA, 98101-2375, for Respondent.

Kevin J. Hamilton, Perkins Coie LLP, 1201 3rd Ave., Ste. 4900, Seattle, WA, 98101-3095, Amanda J. Beane, Heath Loring Hyatt, Perkins Coie LLP, 1201 3rd Ave., Ste. 4900, Seattle, WA, 98101-3099, Reina Alece Almon-Griffin, Perkins Coie LLP, 1201 3rd Ave., Ste. 3915, Seattle, WA, 98101-3029, for Respondent Intervenor.

Siddoway, J.P.T.^*

¶1 In the fall of 2021, close to a year after the November 3, 2020 general election, Washington Election Integrity Coalition United (WEiCU), joined by one or more voters as co-plaintiffs, brought lawsuits challenging eight Washington counties’ conduct of the election.¹ Along with several individual plaintiffs, WEiCU brought the two actions consolidated in this appeal in Lincoln County and Franklin County, with each action naming as defendants the county and its auditor. As initially pleaded, the complaints alleged that major and potentially decisive errors had been made in tabulating election results statewide, which on "inform[ation] and belie[f]" had occurred, in part, in the defendant counties. Lincoln County Clerk's Papers (Lin. CP) at 313-14, 375-76.² Both complaints also sought to enforce public record requests that WEiCU had directed to the counties for original ballots, ballot images, spoiled ballots, adjudication records, ballot envelopes, and returned ballots, for the purpose of performing a "full forensic audit" of the counties’ elections. Lin. CP at 317, 379. WEiCU's record requests to the counties had been met by responses that many of the requested records were exempt.

¶2 Both superior courts dismissed WEiCU's complaints, and WEiCU appeals the dismissals. The responding counties ask us to find that WEiCU's claims were frivolous and to award them reasonable attorney fees and costs for having to defend a frivolous appeal. We affirm dismissal of both complaints but decline the requests for an award of reasonable attorney fees on appeal.

FACTS AND PROCEDURAL BACKGROUND

Lincoln County case

¶3 WEiCU's original complaint against Lincoln County and its auditor, Chandra Schumacher, was filed on October 4, 2021. WEiCU had a single co-plaintiff in the action, Lincoln County elector Jerry Schulz, who appeared pro se. They also named as defendants "Does 1-30," who were not only pseudonymous, but whose alleged acts, omissions, or relationship to any cause of action was unidentified. The complaint was signed on behalf of WEiCU by one of its directors, Tamborine Borrelli, rather than by an attorney.

¶4 The complaint's causes of action were described in an overview section as seeking a judgment for violations of plaintiffs’ civil rights by the former auditor, who allegedly

allow[ed] or facilitate[ed] vote flipping, additions and/or deletions, ballot box stuffing through lax signature verification, party preference tracking, and personally certifying electronically generated tabulation results for an Election subject to not only a substantial loss of access to signature verification data, but also a ransomware attack.

Lin. CP at 373. The complaint alleged on information and belief that statewide, "approximately 6,000 votes were flipped, over 400,000 votes were added, and/or thousands of votes were removed in one or more state-wide races before, during, and/or after the Election." Lin. CP at 375. The complaint alleged that WEiCU had "issued a records request for ballots to confirm or deny the conduct," and sought "a Court order compelling release of the public records, including a Court order unsealing ballots under RCW 29A.60.110" for purposes of its proposed forensic audit. Id. at 373.

¶5 In January 2022, WEiCU substituted a second amended complaint³ in which it removed citation to the United States Constitution.

¶6 The Washington State Democratic Central Committee (WSDCC) moved to intervene in the Lincoln County action. WEiCU opposed the motion, arguing that WSDCC lacked standing and that its purported interest in the case—confirming the election results—was improper because WEiCU was not seeking to decertify the election. (WEiCU's original complaint and second amended complaint disclaimed it was seeking decertification, asserting it thereby avoided the 10-day limitation period for election contests imposed by RCW 29A.68.013.) The superior court granted the WSDCC leave to intervene.

¶7 An answer filed by Lincoln County and Auditor Schumacher (hereafter collectively "Lincoln County") denied the allegations and asserted multiple affirmative defenses. It characterized WEiCU's claims as frivolous and interposed for an improper purpose, and sought reasonable attorney fees and costs under CR 11 and RCW 4.84.185.

¶8 In February 2022, Lincoln County moved the court for judgment on the pleadings under CR 12(c). It argued:

• While WEiCU claimed it was not seeking decertification of the 2020 general election, that was, in substance, its goal, and its claims were statutorily barred by chapter 29A.68 RCW's 10-day time limit for election contests and its requirement that such contests be initiated by an elector's affidavit,

• WEiCU's claims were also time-barred by the doctrine of laches,

• The complaint did not plead facts that would support the standing of either WEiCU or Schulz to assert the election-related claims,

• WEiCU failed to state a claim on which relief could be granted because its allegations on information and belief and asserting fraud fell short of the requirements of CR 8(a)(1) and 9(b), and

• With respect to WEiCU's Public Records Act (PRA), chapter 42.56 RCW, claim, the ballot records it sought were exempt from disclosure.

See Lin. CP at 37-49. A week later, WSDCC brought a separate but substantially similar motion to dismiss.

¶9 WEiCU opposed the motions, which were heard on March 25, 2022. The court took the matters under advisement, and on March 28, issued a written ruling granting Lincoln County's motion and awarding it reasonable attorney fees and costs.⁴ It found in granting the motion and awarding fees:

Plaintiffs’ election claims are untimely and barred by statute and the equitable doctrine of laches, that the respective Plaintiffs each lack standing to bring the election claims alleged, and that Plaintiffs fail to state an election claim upon which relief may be granted. The court further finds that Plaintiffs fail to state a claim upon which relief may be granted under the Public Records Act[,]

and

Plaintiffs’ claims are frivolous and advanced without reasonable cause, are not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and were interposed for improper purposes.

Lin. CP at 178. Judgment was later entered awarding Lincoln County approximately $850.00 in costs and $21,736.50 in attorney fees.

¶10 WEiCU timely moved for reconsideration. In addition to rearguing the issues that had been addressed by the parties’ briefing and argument of the motions to dismiss, it brought to the court's attention for the first time that on March 24, the day before the hearing on the motions, WEiCU's lawyer had sent to Lincoln County's outside counsel a "Notice of Potential Conflict of Interest [/] Request for Cooperation." Lin. CP at 107-09 (boldface omitted). Pointing to RCW 36.27.020(9)⁵ and RCW 29A.84.720,⁶ WEiCU's lawyer contended that as a special deputy prosecuting attorney for Lincoln County, its outside counsel had statutory duties he was violating by defending the county and its auditor against WEiCU's claims. She demanded that he forward her letter to the county prosecutor and confirm to her within three business days his "agreement to cooperate in good faith with WEiCU to bring all relevant evidence before a proper judicial tribunal," failing which she "reserve[d] the right to bring this matter to the Court's attention." Lin. CP at 109.¶11 Lincoln County's outside counsel evidently did not reply to the letter, and as a final basis for WEiCU's motion for reconsideration, WEiCU argued:

At the very least, the Court should have asked for briefing regarding the apparent conflict of interest between the prosecutor's dual duties.

....

Over the past few months, the Deputy Prosecutor has actively defended against the verified facts and allegations of legal violations of election procedure, falsely alleging the matter is an election contest subject to dismissal, threatening attorney fees sanctions against Plaintiffs on multiple occasions, and filing a motion to dismiss the action to avoid discovery. ...

....

Based on the apparent conflict of interest and now-repeated violations of statutory law relating to prosecutorial duties, WEiCU hereby requests that this Court appoint an independent (and non-biased) special counsel to represent Defendants, and that said counsel cooperate with WEiCU in investigating the election law violations at issue before the proper jury consistent with RCW 36.27.020(9)....

The Court should also take

...