Opposition Brief — Taxpayers of King County v. King County

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No. 97-812 VY

In The

Supreme Court of the Unite

October Term, 1997"

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TAXPAYERS OF KING COUNTY,

Petitioners,

KING COUNTY; WASHINGTON STATE MAJOR

LEAGUE BASEBALL STADIUM PUBLIC FACILITIES

DISTRICT; THE BASEBALL CLUB OF SEATTLE, LP;

THE STATE OF WASHINGTON; JOHN SCANNELL;

VINCE KOSKELLA AND FRANK RUANO;

WILLIAM C. SEVERSON; CARL NELSON,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Washington

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BRIEF FOR RESPONDENTS KING COUNTY AND

WASHINGTON STATE MAJOR LEAGUE BASEBALL

STADIUM PUBLIC FACILITIES DISTRICT IN

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

¢

Preston, Gates & Norm MALEeNG

E.uis LLP King County Prosecuting

Pau. J. LAwrReNcCE* Attorney

Larry CARTER QUENTIN YERXA*

701 Fifth Avenue Sr. Deputy Prosecuting

Suite 5000 Attorney

Seattle, WA 98104-7078 Civil Division

(206) 623-7580 E550 King County

Counsel for Respondent Courthouse

Washington State Major Seattle, WA 98104

League Baseball Stadium (206) 296-9015

Public Facilities District Counsel for Respondent

*Counsel of Record King County

*Counsel of Record

December 15, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether Petitioners’ assertion of a federal due process

claim based upon a state court’s rulings on state law

issues is without merit when the state courts relied upon

existing precedent and Petitioners had an opportunity to

be heard in accordance with established state court pro-

cedures?

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PARTIES TO THE PROCEEDING

The parties to the proceeding are as listed in the caption,

except that the Baseball Club of Seattle, LP, and the State

of Washington participated in the state court proceedings

in the capacity of amici curiae, and are not listed as

parties in the caption of the Washington Supreme Court's

decision. Respondents William C. Severson and Carl B.

Nelson were intervenors aligned with the Petitioners at

the trial court level, but did not participate in the appeal.

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TABLE OF CONTENTS

Page

i ie A @ g's 5: 2 Ee renee eas i

FARIIES TO THE PROCEEDING. .... 26.6.8 cece cece. ii

RARE META TA BEE bs cin inh'c as wince a saben Fe-ve's iv

i. SIATEMENT OF THE CASE .................. 1

Il. REASONS WHY THE PETITION SHOULD BE

cc EEE ILE Eee ree See oly eat pera rarer 4

A. This Case Raises No Federal Issues....... 4

B. This Case Raises No Legal Issues of

PUUNNE GUNONINIE s 5 5. o kck va seevasveness 9

ee NE eras 56s beh kn CE Oe ck bee kas ees 10

iv

TABLE OF AUTHORITIES

Page

CASES

Bouie v. Columbia, 383 U.S. 347, 84 S. Ct. 1697, 12

LS ee: REE cd bass caee heed abe cceeee es: 8

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 US.

673, 50 S. Ct. 451, 74 L. Ed. 1107 (1929) ......... 8, 9

Cardinale v. Louisiana, 394 U.S. 437, 89 S. Ct. 1161,

ee Ris Ss ee Ce knn ck ae ccdkieacenieoseeress 5

CLEAN [Citizens for Leaders with Ethics and Accoun-

tability Now!] et al. v. State of Washington et al.,

130 Wn.2d 782, 928 P.2d 1054 (1996) ...1, 2, 3, 4, 6, 8

Citizens for More Important Things v. King County,

131 Wa.2d 411, S52 P22 TS 997) . 222. cece sees 1, 4

Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 819

Ade OE REPU 0 knee aviunnakdnbchakdecubaceeceene> 7

General Telephone v. Bothell, 105 Wn.2d 579, 716

Fe Gre CAO 6 bn ac oadakg eneen yok wae deeinne ves 6

Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L.

Sd. SUE Bae ROK 5 6x woe CNG A waned keane seas 6

Herndon v. Georgia, 295 U.S. 441, 55 S. Ct. 794, 79 L.

hs Bek. Be Gc hod cca h beh on eR Pamerceen as 8

Murdock v. City of Memphis, 87 U.S. (20 Wall) 590,

Be Rex: Ss SO CRON 6 a5 ian ocean edR i Roe ee thoes 5

Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d

EP OO Fee re MASOOD ohne vc ix daecuraseccsusasn 7,8

Northlake Marine Works v. Seattle, 70 Wn. App. 491,

eo Ga. , re euiparern egies Gena acu rere 6

Radio Station WOW, Inc., et al. v. Johnson, 326 U.S.

120, 65 5. Ct. 1475, 8 LL. Bd. 2092 (1963) ois cess 6

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTION

CP OE, BNE BOs opines coe taeda ek casies tena 4

Waar, Comet. aft. Vit O6 S. 7 isc ceer esse vice teas 2,9

STATUTES

2B USS Aas ik oe secede stews cho esunees see 5

Was: Raw. Coes 0S ii oes AC ede 2

1995 Wash. Laws Ch. 1, 3d Spec. Sess..........00-: : Se

RULES

A ae Ee ee ons FAK eed sek ee Re a oes kee 7

i Ee es eee ace Ci naa cae ee abe > aa 9

oo tS ce AL. > SPR ar ener very pre AeeaOrran aN Air Roy i 7

eats ee FS 5 vs a Kao Re ee Be eka eee 6

OTHER AUTHORITIES

12 Moore’s Federal Practice, § 57.22[3] (Matthew

ee Oe DGS ocak 6 dese dee eee oe 7

BRIEF FOR RESPONDENTS KING COUNTY AND

WASHINGTON STATE MAJOR LEAGUE BASEBALL

STADIUM PUBLIC FACILITIES DISTRICT IN

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Respondents King County (the County) and the

Washington State Major League Baseball Stadium Public

Facilities District (the District) respectfully request that

this Court deny the Petition for a Writ of Certiorari,

seeking review of the Washington State Supreme Court's

opinion in this case, which is reported at 132 Wn.2d 360,

938 P.2d 309 (1997). Neither the underlying case, which

was decided purely as a matter of state law, nor the

Petition itself, which consists largely of an unsubstanti-

ated and affrontive political attack on the integrity of the

state judiciary, raises a substantial federal question. Fur-

ther, Petitioners have mischaracterized both the decision

that they are seeking to have reviewed, and the facts

upon which that decision is based.

I. STATEMENT OF THE CASE

This Petition arises from the third in a series of cases

involving challenges to the validity of a Washington State

statute (1995 Wash. Laws Ch. 1, 3d Spec. Sess.) authoriz-

ing the construction of a new publicly owned baseball

stadium, and local measures implementing that statute.

In the two prior cases, CLEAN [Citizens for Leaders with

Ethics and Accountability Now!], et al. v. State of Washing-

ton, et al., 130 Wn.2d 782, 928 P.2d 1054 (1996) and Citizens

for More Important Things v. King County, 131 Wn.2d 411,

932 P.2d 135 (1997), the Washington Supreme Court

upheld both the statute! and the actions taken by both the

County and the District in implementing that statute.

The state court action leading to this Petition was

brought by the County under a Washington statute

authorizing special declaratory judgment actions by local

governments to test the validity of municipal bonds.

Wasu. Rev. Cove § 7.25. Under that statute, the trial court

is required to appoint a “representative taxpayer” who is

to represent the interests of all of the taxpayers of the

jurisdiction in question. Id. The statute further provides

that the attorneys’ fees of the taxpayers representative are

to be borne by the governmental entity bringing the

action and that the other provisions of Washington law

relating to declaratory judgment actions apply to “the

action herein provided for.” Id.

One of the issues in dispute in the declaratory judg-

ment action was whether the lease agreement entered

into between the Seattle Mariners Baseball Club (the

“Club”) and the District constitutes a gift of public funds

in violation of Wash. Const. art. VIIL, §§ 5 and 7. As

summarized by the Washington Supreme Court’s major-

ity opinion, the lease contains a commitment from the

Mariners to: 1) play 90% of their home games in the

stadium for the length of the term of the bonds issued to

finance the stadium; 2) pay $45 million towards the con-

struction of the stadium; and 3) share profits with the

District. Pet. App. 14. The lease also obligates the Club to

pay $700,000 in rent per year, to pay any construction cost

1 The statute is reprinted in its entirety as an appendix to

the opinion in CLEAN v. State, supra, at 928 P.2d 1084-93.

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overruns, to pay deficiencies on certain bonds, to main-

tain the stadium, to make major repairs and capital

improvements and to provide insurance. Id.

While the trial court granted an expedited hearing

schedule and limited discovery in accordance with Wash-

ington Court Rules, (see argument, Section II A, infra) all

of the Petitioners’ arguments regarding the validity of the

bonds under Washington law were fully briefed, heard

and decided on the merits. An expedited appeal fol-

lowed, and after extensive briefing and oral argument,

the Washington Supreme Court addressed and decided

on the merits all of the issues relating to the validity of

the bonds raised by the taxpayers’ representatives and by

various intervenors.

The Petition contains numerous misstatements of

both fact and law including allegations in its “statement

of the case” that are wholly unsupported by any refer-

ence to the record?. Respondents strongly object to Peti-

tioners’ argumentative characterization of the political

2 For example, on page 4 of the Petition, Petitioners assert

that “the county would receive nothing on its $336 million

contribution” to the funding of the new baseball stadium. This

statement completely ignores the Washington Supreme Court’s

determination that the public will own the stadium and that the

lease agreement contains numerous commitments on the part of

the Club, including a commitment to play in the new stadium

for the term of the bonds. It also ignores the court’s conclusion

in CLEAN uv. State, that the “public provision of a venue for

professional sports franchises serves a public purpose [under

Washington law] in that the presence in a community of a

professional sports franchise provides jobs, recreation for

citizens and promotes economic development and tourism.” 130

Wn.2d at 796, 928 P.2d at 1061.

process leading to issuance of bonds to build a new

publicly owned baseball stadium in Washington. Further,

many of the statements made concerning the Washington

Supreme Court’s opinion itself are inaccurate*. The legal

issues are addressed infra. To the extent that the Court

requires a more accurate factual summary of the process

leading to the construction of the baseball stadium,

respondents respectfully request that the court consider,

for the purposes of this Petition, the neutral recitation of

relevant facts set forth in the Washington Supreme

Court’s majority opinions in this case, and in both CLEAN

v. State, supra and Citizens for More Important Things v.

King County, supra.

II. REASONS THE PETITION SHOULD BE DENIED

A. This Case Raises No Federal Issues

This Court has long recognized that its jurisdiction

over decisions by state courts is limited to cases involving

substantial federal questions:

The State courts are the appropriate tribunals, as

this court has repeatedly held, for the decision

of questions arising under their local law,

whether statutory or otherwise. And it is not

lightly to be presumed that Congress acted upon

3 On page 13 of the Petition, Petitioners assert that the

majority opinion did not discuss the factual record in

connection with its consideration of the issues relating to

“donative intent” and whether there was a “grossly inadequate

return” under the lease terms. To the contrary, the opinion

specifically detailed the obligations of the Club under the lease,

which showed that there was adequate consideration for the

lease as a matter of law. See Pet. App. at 14-18.

re eens ty amare

a principle which implies a distrust of their

integrity or their ability to construe those laws

correctly.

Murdock v. City of Memphis, 87 U.S. (20 Wall) 590, 630, 22

L. Ed. 429 (1875). This jurisdictional limitation is now

formalized in 28 U.S.C. § 1257. See also, Cardinale v. Louisi-

ana, 394 U.S. 437, 439, 89 S. Ct. 1161, 22 L. Ed. 2d 398

(1969).

The Petition is wholly deficient because it fails to set

forth any meaningful theory under which this Court's

jurisdiction can or should be exercised under 28 U.S.C.

§ 1257(a). Rather, Petitioners are seeking review of a state

court decision that addresses only state law issues and

presents absolutely no underlying federal questions or

claims. Petitioners essentially assert that this Court

should review this case because the state courts are inca-

pable of ruling fairly on matters involving professional

sports. See Pet. at 18.

As summarized above, the case involves a state law

cause of action regarding the validity of municipal bonds

under state statutory and state constitutional provisions.

Petitioners do not assert that any federal questions were

presented by the representative taxpayers for decision at

the trial court level or in the state supreme court on the

original appeal of the trial court’s ruling. Clearly no

federal question was decided by either the trial court or

the state supreme court.

The ostensible federal claim advanced by Petitioners

(which was raised for the first time in their motion for

reconsideration after the Washington Supreme Court’s

decision*) is that their due process rights under the 14th

Amendment were violated because the “corrupted” state

courts showed “favoritism” by expediting the proceed-

ings, and departed from prior state constitutional gift

analysis and the standard for granting and reviewing

summary judgment rulings in deciding this case. Peti-

tioners’ underlying theory (which was argued to the state

supreme court and decided adversely to Petitioners) is

that cases involving “gift of funds” allegations under the

Washington constitution can never be decided on sum-

mary judgment, in that they involve questions of “dona-

tive intent” which are questions of fact.

Not only do these assertions fail to state any viable

federal claim, they are also wrong as a matter of state law.

First, the Washington Supreme Court has affirmed

the granting of summary judgment in numerous cases

involving alleged violations of the state constitution’s ban

on gifts of public funds, including CLEAN v. State, supra,

which involved the same stadium funding plan at issue in

this case.5 In concluding that the question of whether

there was adequate consideration for the stadium lease

4 Raising a federal question for the first time on a petition

for rehearing has been ruled untimely when the court does not

entertain or decide the question. Radio Station WOW, Inc., et al. v.

Johnson, 326 U.S. 120, 128, 65 S. Ct. 1475, 89 L. Ed. 2092 (1945);

Hanson v. Denckla, 357 U.S. 235, 243-44, 78 S. Ct. 1228, 2 L. Ed. 2d

1283 (1958). Here, Petitioners’ request for reconsideration was

denied; respondents were not even requested to provide a reply

under Wasn. R. App. P. 12.4(d).

5 See also, General Telephone v. Bothell, 105 Wn.2d 579, 716

P.2d 879 (1986); Northlake Marine Works v. Seattle, 70 Wn. App.

491, 857 P.2d 283 (1993).

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(i.c., whether it constituted a gift) could be decided as a

matter of law, the court expressly relied upon its prior

holding in Nationwide Mut. Fire Ins. Co. v. Watson, 120

Wn.2d 178, 840 P.2d 851 (1992). Petitioners may disagree

with the holding of the court, but their argument that it is

“without precedent” (Pet. for Writ at 13) is simply wrong.

Second, as to Petitioners’ assertions regarding the

accelerated schedule ordered by the trial court, Wasu. Civ.

R. 57 specifically provides that “The court may order a

speedy hearing of an action for a declaratory judgment

and may advance it on the calendar.” As one prominent

treatise states in connection with an identical provision in

Fep. R. Civ. P. 57:

The purpose of this provision is to enable a

court to adjudicate a declaratory judgment

action in a speedy and expeditious manner if the

court deems that the issues in the case require

early resolution in order to avoid the accrual of

damages, harm to a litigant, or otherwise to

further the remedial objectives of [Declaratory

Judgment} Act.

12 Moore's Federal Practice, § 57.22[3] (Matthew Bender 3d

ed.) at 57-95. It was not a violation of the due process

rights of Petitioners for the trial court to act in accordance

with this Rule.

Finally, with regard to the limitation of discovery at

the trial court level, it has long been the law in Washing-

ton that discovery matters are left to the sound discretion

of the trial court judge. See, e.g., Doe v. Puget Sound Blood

Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991). Here the

trial court correctly concluded under applicable Washing-

ton precedent that the gift issues raised by Petitioners

could be decided as a matter of law (just as similar issues

had been decided on summary judgment in CLEAN v.

State, supra), and that they could be decided based upon

the “four corners” of the contractual documents at issue,

as in Nationwide Mut. Fire Ins. Co. v. Watson, supra. It was

not an abuse of discretion (and it certainly did not impli-

cate Petitioners’ due process rights) for the trial court to

conclude that extensive discovery was not called for

under these circumstances.

In short, all of the state courts’ rulings in this case

were based upon well-established state law precedent

and did not constitute any violation of Petitioners’ due

process rights. Petitioners could not have been “sur-

prised” at the result. See Herndon v. Georgia, 295 U.S. 441,

55 S. Ct. 794, 79 L. Ed. 1530 (1935). If a petition for

certiorari were to be granted under these circumstances,

then virtually every unsuccessful litigant in a state court

summary judgment proceeding would have a colorable

claim to the jurisdiction of this Court.

Petitioners’ reliance on Bouie v. Columbia, 383 U.S.

347, 84S. Ct. 1697, 12 L. Ed. 2d 894 (1964) and Brinkerhoff-

Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 74 L. Ed. 1107

(1929) is misplaced. Bouie was a criminal case involving

what amounted to the ex post facto application of a state

criminal statute to the defendant. It is not even remotely

on point. Brinkerhoff-Faris Trust v. Hill is also inapposite.

First, unlike the case at bar, Brinkerhoff-Farris Trust

involved an underlying federal claim — an equal protec-

tion challenge to a state tax assessment. 281 U.S. at 674.

Secondly, the Missouri Supreme Court’s unforeseeable

reversal of its prior holding regarding the jurisdiction of

the state tax commission to hear such a claim, coupled

with its finding that the plaintiff was guilty of laches in

failing to bring its claim before the commission, had the

effect of denying the plaintiff any forum in which to be

heard.

Here, by contrast, the Washington Supreme Court

relied upon and followed prior Washington precedent in

analyzing the proper criteria to apply in determining the

validity of the bonds against a claim of an unconstitu-

tional gift and in affirming the grant of summary judg-

ment to the County. However, even if (as Petitioners

assert) the state court modified its analysis of state consti-

tutional provisions or the circumstance in which sum-

mary judgment may be granted on such issues, it clearly

did not do so in a manner that deprived the taxpayers’

representatives of any opportunity to be heard, as in

Brinkerhoff-Faris Trust, supra.

B. This Case Raises No Legal Issues Of National

Importance.

The Petition does not even attempt to set forth “com-

pelling reasons” for the granting of certiorari as required

by Sup. Ct. R. 10. Instead, the Petitioners allege that the

case raises issues of “national importance” involving the

“monopoly powers” of professional sports. Pet. at 18.

Regardless of whether these may be important political

issues, the specific legal question raised by the Petition is

uniquely a matter of local concern: whether, under Wash-

ington law, a claim that a contract violates article VIII

sections 5 and 7 of the Washington constitution can be

decided as a matter of law from within the “four corners”

of the contract document. Under applicable Washington

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precedent, the Washington Supreme Court correctly con-

cluded that the answer is “yes.” Contrary to Petitioners’

argument, this case raises no legal issues of national

concern warranting review by this Court.

Ill. CONCLUSION

The Washington Supreme Court correctly ruled

under state law principles that the baseball stadium

bonds were valid and binding obligations of the County,

and that the trial court had appropriately granted the

County summary judgment on all issues. The state

courts’ opinions were correctly decided under the laws of

Washington, and raise no substantial and important fed-

eral questions. The Petition should be denied.

Dated this 15 day of December 1997.

Respectfully submitted,

Preston, Gates & Norm MALENG

E.us LLP King County Prosecuting

Paut J. LAwRENCE* Attorney

LARRY CARTER QUENTIN YERXA*

701 Fifth Avenue Sr. Deputy Prosecuting

Suite 5000 Attorney

Seattle, WA 98104-7078 Civil Division

(206) 623-7580 E550 King County

Counsel for Respondent Courthouse

Washington State Major Seattle, WA 98104

League Baseball Stadium (206) 296-9015

Public Facilities District Counsel for Respondent

*Counsel of Record King County

*Counsel of Record