To-Ro Trade Shows v. Collins

Sanders, J.

(dissenting) — The majority should not be allowed the luxury of denying To-Ro Trade Shows its day in court through unchallenged and inconsistent application of the standing doctrine. We must avoid ad hoc, result-oriented decision making which cripples private litigants who seek to protect their constitutional rights against government infringement.

The majority here concludes To-Ro Trade Shows lacked standing to pursue declaratory relief “because it failed to present an actual, immediate dispute in which it had a direct, substantial interest.” Majority at 406. I disagree.

According to the Uniform Declaratory Judgments Act (chapter 7.24 RCW), “A person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the .. . statute . . . and obtain a declaration of rights, status or other legal relations thereunder.” RCW 7.24.020. To-Ro asserts its rights, status, and legal relations are affected by the Washington dealer licensing statute, RCW 46.70.021. The dealer licensing statute provides in part:

It is unlawful for any person, firm, or association to act as a vehicle dealer or vehicle manufacturer, to engage in business as such, serve in the capacity of such, advertise himself, herself, or themselves as such, solicit sales as such, or distribute or transfer vehicles for resale in this state, without first obtaining and holding a current license as provided in this chapter ....

RCW 46.70.021. To-Ro asserts the State’s enforcement of this statute affects its legal right's, and questions the construction and validity of the statute pursuant to the Uniform Declaratory Judgments Act. Specifically To-Ro “seeks a declaration that RCW 46.70 is unconstitutional to the extent advertising, display or exhibition of products and *419 pricing at a trade show is reserved exclusively to State licensed dealers.” Pet. for Discretionary Review at 7.

We have previously held “before the jurisdiction of a court may be invoked under the act, there must be a justiciable controversy.” Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815 , 514 P.2d 137 (1973). A justiciable controversy is one

(1) which is 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.

Id. To-Ro meets each of these four factors and thus has standing to seek relief under the Uniform Declaratory Judgments Act, more so, I think, than did Amalgamated Transit Union which feared the loss of government expenditures through the initiative’s repeal of a tax for general revenue purposes. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183 , 11 P.3d 762 (2000).

To-Ro is in the business of producing consumer shows. Producers of such events make money in two ways: (1) they rent space in a convention center or exhibit hall and then sell exhibit space to exhibitors; and (2) they charge an admission fee to members of the general public who wish to attend the show. Amicus Br. at 3. One of the exhibitors to whom To-Ro sold exhibit space for its 1994 Spokane Spring RV Show was Lake City RV. Trade show patrons demanded refunds directly from To-Ro when the Department of Licensing shut down the Lake City RV exhibit. Report of Proceedings (RP) at 228. To-Ro also had to offer free admission on the evening the exhibit was shut down and reduced ticket prices for the remainder of the show. RP at 229-31. Finally, To-Ro gave Lake City RV a refund of its $4,800 rental fee. RP at 262. To-Ro lost money as a result of the enforcement of this statute and therefore has standing to challenge it.

*420 The majority erroneously concludes To-Ro does not satisfy the first prong of the test for determining whether a plaintiff presents a justiciable controversy for purposes of the Uniform Declaratory Judgments Act by weighing the facts. However we must judge the existence of a justiciable controversy from the facts as alleged by the plaintiff, not by the facts as ultimately proved. See Acme Fin. Co. v. Huse, 192 Wash. 96, 107 , 73 P.2d 341 (1937).

To-Ro’s pleadings clearly present an actual dispute or at least the mature seeds of one. Moreover the factual record establishes To-Ro’s loss of revenue is real and demonstrable. To-Ro’s assertion — that it will continue to lose money if dealers who are not licensed by the State of Washington are prohibited from participating in trade shows, even if they do so only to advertise their products — is a logical imperative. The majority’s criticism that To-Ro failed to show “that there are unlicensed dealers waiting in the wings to display their unpriced vehicles at a To-Ro trade show” is wrong. Majority at 415. There very plainly ARE such dealers; Lake City RV is among them. Moreover, as amicus argues, the success of a trade show is contingent upon the reputation the show has with exhibitors and the general public. Amicus Br. at 3. Therefore the negative impact of forcing To-Ro to close a substantial portion of its 1994 Spokane Spring RV Show will at least arguably affect its ability to attract exhibitors and attendees in the future. Id. We are not, as the majority suggests, faced with a situation “where the event at issue has not yet occurred or remains a matter of speculation.” Majority at 416. Here the event, To-Ro’s loss, has occurred and will arguably continue to occur.

Neither the majority here nor the Court of Appeals below contends the second justiciability requirement is not met. To-Ro and the Department of Licensing have genuine and opposing interests. To-Ro asserts RCW 46.70.021 is unconstitutional and the Department of Licensing asserts the constitutional challenge to the statute is without merit. Pet. for Discretionary Review at 5; Answer to Pet. at 9.

*421 The majority and the Court of Appeals do however agree “To-Ro did not show that its ‘interests’ in the dispute over DOL’s [Department of Licensing’s] enforcement of the dealer licensing statute were ‘direct and substantial’ as opposed to ‘potential, theoretical, abstract or academic.’ ” Majority at 411 (quoting Diversified Indus. Dev. Corp., 82 Wn.2d at 815 ). I disagree. To-Ro lost a substantial sum of money when DOL shut down the Lake City RV exhibit. It had to give refunds to disgruntled patrons, open its gates for free, and refund Lake City RV’s $4,800 registration fee. This is undisputed. The majority correctly states, “Under the Act, ‘[o]ne may not. . . challenge the constitutionality of a statute unless it appears that he will be directly damaged in person or in property by its enforcement.’ ” Majority at 411-12 (quoting De Cano v. State, 7 Wn.2d 613, 616 , 110 P.2d 627 (1941)). Notwithstanding, the majority then summarily dismisses the fact that To-Ro lost well over $5,000 as a direct result of DOL’s enforcing RCW 46.70.021. The majority simply ignores that withdrawal of an exhibit from a trade show directly injures the producer of the show. A trade show producer makes money by renting space to exhibitors and charging admission to patrons. The removal of an exhibitor from a trade show necessarily has a direct impact on the business of the trade show producer. I think To-Ro not only has alleged injury, it has proved it.

Further, the cases cited by the majority to support its conclusion must be distinguished. Yakima County (West Valley) Fire Protection District No. 12 v. City of Yakima, 122 Wn.2d 371, 379 , 858 P.2d 245 (1993) specifically recognizes “[p]arties whose financial interests will be affected by the outcome of a declaratory judgment action have standing.” We ultimately determined the fire district in Yakima County lacked standing to seek declaratory judgment because it was not directly affected by the homeowner agreements 7 it sought to nullify. Id. The fire district’s interests *422 would be affected only if the City of Yakima actually annexed the properties subject to the homeowner agreements. Id. at 380 . While the homeowner agreements arguably made annexation easier, they did not make annexation a fait accompli, and therefore any damage to the interests of the fire district remained entirely speculative. Id. But the situation in Yakima County is markedly different from the one presented here. To-Ro has suffered a demonstrable financial loss resulting from DOL’s enforcement of the dealer licensing statute. Moreover To-Ro’s financial interests will be affected by the outcome of the declaratory judgment it seeks: If the dealer licensing statute is, as To-Ro argues, unconstitutional, then To-Ro will be permitted to sell exhibit space at its trade shows to all exhibitors like Lake City RV.

Similarly, the majority’s reliance on Washington Beauty College, Inc. v. Huse, 195 Wash. 160 , 80 P.2d 403 (1938) is misplaced. Washington Beauty College challenged the validity of section 3(a) of chapter 215, Laws of 1937, which required hairdressers licensed by the State to hold a high school diploma. Wash. Beauty Coll., 195 Wash, at 161. The college filed suit pursuant to the Uniform Declaratory Judgments Act asserting the statute was unconstitutional. Id. The college argued the statute adversely affected its ability to attract and retain students and it nullified contracts with existing students. Id. at 162 . We determined the college lacked standing to sue because its interests were too remote. Id. at 165 . We found “[n]o showing has been made of any direct or substantial injury threatened or suffered by appellant so as to present a justiciable issue.” Id.

To-Ro however presents a different situation. Here the party seeking declaratory relief has suffered a direct and substantial injury including loss of cash and reputation. In contrast to the injury alleged in Washington Beauty College and Yakima County which was speculative and uncertain, the injury here is concrete and demonstrable.

To-Ro also meets the fourth justiciability factor. As previously indicated, a judicial determination of the constitu *423 tionality of the dealer licensing statute will resolve the dispute between To-Ro and DOL. If the statute is found unconstitutional, To-Ro must be permitted to sell exhibit space to out-of-state exhibitors who wish to participate in a trade show to advertise their products and should recover its damages.

In support of its First Amendment claim To-Ro likens its situation to that of a bookseller or theater owner, entities that have traditionally been given standing to vindicate the rights of third parties. To-Ro asserts it is a “ ‘clearinghouse’ for expression and as a practical matter is in a far better position to vindicate First Amendment rights, ensure public access and thwart excessive governmental intrusion upon the free exchange of ideas and information than individual show patrons or exhibitors.” Pet. for Discretionary Review at 8. The Ninth Circuit concluded in Cinevision Corp. v. City of Burbank, 745 F.2d 560, 568 (9th Cir. 1984), “a concert promoter, like a bookseller or theater owner, is a type of ‘clearinghouse’ for expression.” The court further concluded the promoter, rather than the individual patrons or performers, was in the best position to vindicate First Amendment rights. Id. To-Ro argues the same principle should apply to trade show promoters. To-Ro asserts the dealer licensing statute impermissibly infringes on the First Amendment rights of trade show exhibitors and, as a promoter of trade shows, it is in the best position to vindicate those rights. Pet. for Discretionary Review at 8.

The majority asserts “To-Ro’s interest in seeking declaratory relief lies outside the zone of interests regulated by RCW 46.70.021.” Majority at 414. But To-Ro must only show “ ‘ “the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” ’ ” Majority at 414 (emphasis added) (quoting Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 494 , 585 P.2d 71 (1978) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 , 90 S. Ct. 827 , 25 L. Ed. 2d 184 (1970))). Here To-Ro is asserting the First Amendment right to use *424 the forum it provides. DOL’s enforcement of the dealer licensing statute affects the constitutional guarantees provided in the First Amendment. Nor does it defeat First Amendment standing if To-Ro is able to turn a profit on the expressive conduct of exhibitors who participate in its trade shows. See Cinevision, 745 F.2d at 567 (“[E]ven though concert promoters generally promote concerts for profit, they still enjoy the protections of the first amendment.”). Moreover, as recognized by Seattle School District No. 1, we are supposedly liberal in our view of who has standing to seek declaratory relief. Seattle Sch. Dist. No. 1, 90 Wn.2d at 493 . See also RCW 7.24.120 (“This chapter is declared to be remedial... and is to be liberally construed and administered.”).

Finally, I am troubled by the majority’s reliance on the jury’s advisory verdict in this case. Majority at 412. At the point the jury deliberated, there was really nothing for them to decide since all To-Ro’s claims had been dismissed for lack of standing. Quixotically three questions were sent to the jury on an advisory basis only. Id. I cannot fathom why this Court should rely on a “highly unusual” advisory jury verdict that “has no binding legal effect.” Majority at 412 n.6. Moreover the issue is whether To-Ro had standing, not whether it proved its damages to the jury’s satisfaction. In any event a defense verdict on damages does not mean the plaintiff lacks standing to pursue the litigation, only that it couldn’t convince the jury by a preponderance of evidence that it should be compensated. The majority’s analysis is bootstrapping.

Based on the foregoing I believe To-Ro has presented a justiciable controversy and therefore has standing to invoke the Uniform Declaratory Judgments Act.

Accordingly, I dissent.

Reconsideration denied October 18, 2001.

To receive sewer service from the City of Yakima landowners were required to sign a future petition for annexation. Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 375 , 858 P.2d 245 (1993).