Superior Court of the State of Washington For Thurston County Paola Casey, Judge Gary R. Tabor, Judge ‘Deparaent No.1 Derarinent io. 5 ‘Thomas McPhee, Jadge chris Wickham, Jee Deperinént 2 Deparenet No.6 Richard D. Hie, Jdge Anne Hirsch, Judge Deparment No.3 Department No.7 curtaineAcPomerey, Judge 2000 Lakcdge Drive SW» Building No. Two + Olympia WA 98502 Carol Murphy, Judge Deum not “elpone (260) 16-5560» Px (80) 754-4060 Toparanaiont March 5, 2010 Stephanie M. R. Bird Attorney at Law 924 Capitol Way S Olympia, WA 98501-1210 Kathryn Wyatt, AAG 7141 Cleanwater Ln. SW wi Olympia, WA 98501-6503 Opinion and Ruling Granting The Petition and Reversing the Arts Commission Re: Simon Kogan v, State Arts Commission Thurston County Cause No, 08-2-02829-9 Dear Counsel: “Let us be ever mindful that in centuries to come, when the labors of statesmen and legislators have become dust and ashes, the creative genius of our artists alone may survive,””* ‘The Arts Cormmission is important. In this author’s opinion it is both necessary and under valued. It was brought into being by Governor Albert D. Rosellini, who had established such a Commission by executive order in 1959, and finally in 1961, the Legislature agreed to fund it.” Its also clear to this author that one of the fanctions adopted by the Arts Commission is to ' Veto message excerpt by Governor Albert D. Rosellini, Laws of 1961, chapter 301, >The Legislative history is set out infra, Marti Mexwell, Administrator» (360) 786-5560 * T1)D (360) 754-2933 or (800) 737-7894 + aocessibilitysuperircourt@coshurston.wasae T11s the polzy ofthe Superior Court to ensure that persons with dsabllties have equal and fall access tothe judiclal cyst. gyKogan v. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling March 5, 2010 Page 2 of 17 teach and help artists, particularly those in the State of Washington, as to how they might qualify for consideration when the government purchases public art. Everything in this record shows the good faith and good intentions of the Arts Commission and their staff. Though this opinion and ruling is critical of their actions in this instance, it is not critical of the oyeral] work of the individuals or the Commission, This court is of the opinion they need to promulgate clear rules and then follow the published rules ~ which they have the power to do, PROCEDURE On December 16, 2008, Simon Kogan filed a petition for judicial zeview of an agency’s order. The agency action under appeal was the Arts Commission striking of Kogan’s name from the Public Artist Roster? Kogan had qualified, and been a member of the Artist resource bank for over ten years and during that tenure four of his smaller works had been. puichased by agencies, They purchased his already existing work (as opposed to authorizing a commission to create something new) which could be purchased by an agency because, if they had funds and the inclination, they could select works of artists who the Commission had pre-selected as worthy by being within the Artist resource bank, On April 21, 2008, Kogan received a letter from Ms. Alice Taylor, the program manager of the Arts Commission informing him that during a recent review of the “Public Artist Roster” (sic.) the review panel had concluded that his portfolio fell short of one or more of their criteria and so they had removed him from the ‘roster.’ The letter invited him to seek feedback and so he did, After receiving feedback from Ms. Janae Huber, the Arts Commission collections manager that his work felt inconsistent “as if there are 10 different artists’ work being shown,” Kogan wrote a letter of protest to Ms. Kris Tucker, the Arts Commission’s executive director, He protested that “consistency” was not one of the listed or identified criteria. > This court is unable to find anywhere in the statute, ch 43.46 RCW, or, the promulgated administrative rules chapter 30 WAG, a reference to, or identification of, the “Public Artist Roster.” What i idestfied in ‘WAC 30-02-010(7) and used in WAC 30-40-070(3)(4) is the “Artist resource bank.” From the comments of both attomeys during oral argument the court has leaned that the “Artist resource bank” ie now informally referred to by the Arts Commission as the "Public Artist Roster.” This is a small, and haedly noteworthy deviation, except, it points to the willy-nilly making up of one’s own rules, ag explained later in this opinion, instoad of using those formally promulgated by the Commission or the Legishatuie,Kogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 Letter Opinion and Ruling ‘March 5, 2010 Page 3 of 17 Tucker wrote back on May 19, 2008, inviting Kogan to reapply and enclosed a copy of the listed criteria the panel had considered. During oral argument the court learned that this ‘criteria’ had not even been informally published, such as on the Commission’s web site, prior to the selection process — or culling — began. However, after the initial rejection of Kogan, he was given previously unpublished criteria and was invited to resubmit work for the review panel which would be reviewing the decisions made by the initial panel, One of thé matters about which Kogan complains is that in this now identified criteria, carried in the letter, the requirement of “cohesiveness” was not included. On August 6, 2008, Kogan received a letter from Huber informing he was not selected for the Artist resource banlc by the review panel because his “body of work was not cohesive.” On September 5, 2008, Kogan appealed pursuant to WAC 30-08-070(2) to Tucker, the Arts Commission executive director. On September 15, 2008, ‘Tucker denied his appeal, On October 8, 2008, pursuant to WAC 30-08- 070(4) Kogan appealed Tucker’s decision to the Chair of the Arts Commission, Ms. Leann Johnson, On October 17, 2008, Kogan received a letter from Tucker scheduling an appeal hearing for November 6, 2008. ‘Kogan responded that he was outside the country on that date and requested a short continuance until a time after he had returned, or, the next. Commission meeting, On October 29, 2008, the Arts Commission wrote Kogan telling him they would not continue the hearing. On November 6, 2008, with Kogan out of the country, his attorney Ms. Stephanie Bird appeared on his behalf and was given ten minutes to present his appeal. Even before attorney Bird made her presentation Johnson, the chair of the Arts Commission, informed the Commission that the staff recommended Kogan’s appeal be denied. After a listening to attomey Bird for ten minutes the Arts Commission went into a private session, then returned and publicly voted to deny Kogan’s appeal. ‘This suit was then filed. After suit was filed the Commission filed a Response and Motion for Determination of Composition of the Administrative Record, and its payment, Kogan’s attomeys responded in regards to the difficulty this presented because of the record’s length and Composition. At a hearing on March 13, 2009, the court requested the parties to shorten the record and transcripts by their own agreement, if possible, Further, the court ruled thatKogan v. State Arts Commission ‘Thurston County No, 08-2-02829.9 Letter Opinion and Ruling ‘March 5, 2010 Page 4 of 17 Kogan should stand the initial expense of identifying and paying for those portions of the record that supported his appeal and that if the Commission considered other portions were necessary that they then would provide those at their expense, During this same time period an amended petition was allowed along with an extension of time to complete the record: The Arts Commission then moved for a protection order to not allowv artists’ portfolios to be distributed outside of these proceedings. ‘The court entered that order on August 17, 2009. Finally, after a second time extension to prepare the record, an agreed record was filed, and a Case Scheduling Order was entered for a hearing on February 26, 2010. ‘That hearing has now been completed. 1 ANALYSIS, In 1961 the Legislature created the Washington State-Aits Commission, chapter 43.46 RCW.‘ This Act was amended in 1965°, and again in 19675. It ‘was subject to termination through a Sunset Act in 1983.” It was then teauthorized in 1985,° and again codified as chapter 43.46 RCW. It has since ‘been amended in 1988", 1990", 1999"', 2007", and recently. in 2009". The authorizing procedure for actually purchasing works of art is set out in chapter 43.19 RCW. In order to follow the Legislature’s directive, pursuant to RCW 43.46.040, the Arts Commission adopted chapter 30 WAC, to administer chapters, 34.05, 42.17, and 43.46 RCW. A party challenging the validity of an agency action bears the burden of demonstrating invalidity, RCW 34.05.570(1)(a). In an appeal of an administrative decision the court applies the standard of review directly to the administrative record. ‘Laws of 1961, ch. 301, The Arts Commission had existed for two year prior through exscutive order. 5 Laws of 1965, ch &, chapter 43.46. ‘Laws of 1967, ex. 565» ch. 125, 2 Laws of 1983, ch. 197 "Laws of 1985, ch. 317, ° Laws of 1988, ch. 81, Part V- " Lavé of 1990, ch, 33, §578. Laws of 1999, ch. 241. "Laws of2007, ch. 128. ™ Laws of 2009, ch. 549, § 5134,Kogan v. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling ‘March 5, 2010 Page 5 of 17 Kogan argues that the rule, WAC 30-40-070(4) is unconstitutionally void for vagueness because a person of common intelligence has to guess at its meaning, Keene v. Board of Accountancy, 77 Wn. App. 849, 857 (1995) citing to Haley v. Med Dise. Bd., 117 Wn.2™ 720, 739 (1991). In Keene the Board revoked a CPA license. Administrative rules are presumed valid and their enabling statutes, here RCW 43.46.040, are presumed constitutional. Constitutional due process does apply to a disciplinary proceeding but this is nota disciplinary proceeding. The State further argues that this is not an adjudicative action at all, like a disciplinary proceeding, but is ‘other agency action’ more like not opening certain areas for fishing based upon discretionary decisions aimed at protecting conservation of fisheries in Purse Seine v. State, 92 Wn. App. 381, 388 (1998). Thére activity or qualification may or may not be allowed depending on how the agency evaluates the situation and exercises its discretion. The State argues that the Arts ‘Commission is not primarily interpreting the law, and thus is not subject to de novo review, but exercising a decision on culling the Artist resource bank. Again; in challenging agency action the action is presumed valid and the party challenging it must demonstrate that it is not valid. Under other agency action under the APA the aggrieved party may be granted relief when the action is unconstitutional, exceeds the scope of agency authority or is arbitrary and capricious, RCW 34.05.570(4)(c)(i), (ii), and (iii). ¢ The challenge to the agency action here is not a challenge to an adjudicative action, but is other agency action in culling and maintaining an Artist resource bank pursuant to WAC 30-40-070(3)(d) which tlie agency refers to as ‘the roster,” a term not defined in the WAC 30-02-010 definitions that the Arts Commission adopted. ‘Terms like ‘panels’ ‘appeal? ‘art selection panel? ‘evaluators’ and even ‘professional artist’ are specially defined, Nevertheless, the criteria used to maintain the Artist resource bank, i.e. ‘roster,’ is set out in WAC 30-40-070(4), Although no one has raised the issue, the record shows that Simon Kogan meets the definition of a “Professional artist,” as defined in WAC 30-02-010(33) [See: 307-309]. .Kogan v: State Arts Commission ‘Thurston County No. 08-2-02829-9 ‘Leiter Opinion and Ruling March 5, 2010 Page 6 of 17 Passing The Unworked Field" Queen Anne's lace is hardly prized but neither is it idle, look how it stands fiercely on its, thin stem, how it nurtures its white budlets with the giftof the sun, howit makes for this world all the loveliness it can. Kogan has been in the Artist resource bank for over a decade and the state has purchased at least four of his pieces.'> Perhaps his most well-known piece of public art is the WW II memorial placed on the Capitol Campus but this was not purchased through the Arts Commission. He argues that being removed is taking hi ‘property’ (the intangible right to be on the list) without constitutional due process. He cites to Board of Regents v. Roth, 408 U.S, 564, 576-578 (1972), for the proposition that he had more than an abstract need or desire for listing within the Artist resource bank, and that it was not just a unilateral expectation, but rather a legitimate claim of entitlement to it in the sense that he was entitled to be kept within the bank once he was selected for it. But the State argues that he does not have a property interest or proprictary right to always be kept within the Artist resource bank, arguing it is not like a contract right, but ‘that it is more akin toa ‘permit,’ as in Marincovich y. Tarabochia, 114 Wn.2™ 271, 276 (1990), which enables the state to discern in advance between those persons who have qualified, and those who have not, for public art purchases of existing work, Even then it does not foreclose an artist for competing for certain (but not all) public art projects, The State argues there is no ‘vested right’ to always remain within the Artist resource bank, once one has qualified, citing to anote of dictum in Sylvester v. Pierce Cty., 184 Wn. App. 813, 825, n. 9, citing to State v. Johnson, 119 Wn.2™ 167, 171 (1992): ™ Mary Oliver, Parabola, Spring 2010, p38, "During oral ergument counsel forthe state argued that these were four small pieces that agencies purchased some time ago with s total value of under $6,000 and so were de minimis.Kogan v. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling March 5, 2010 Page 7 0f17 Here the burden of proof is on Kogan since the range of interests protected by procedural due process is not infinite, rather it involves rights defined by existing rules or understandings such as state law or understandings that secure certain benefits and that support claims of entitlement to those benefits, Paul v. Davis, 424 U.S. 693, 709 (1976). For instance, governmental action ‘defaming’ an individual in the course of declining to rehire him though it could entifle the person to notice and an opportunity to be heard, is not necessarily actionable under the Fourteenth Amendment. Kogan has not proved that in declining to keep him within the Artist resource bank that he has been seriously damaged whether to his standing _ and associations within the community, nor, imposed a stigma, nor, other disability on him, that foreclosed his opportunity to take advantage of other employment opportunities - even competing for other public art projects. Kogan has not shown that there is any protection under state law such as there is for a driver’s license that can not be withdrawn without giving the holder due process, Bell v. Burson, 402 U.S. 535 (1971) or having a parolees right to liberty taken as long as not violating the conditions of their parole as in Morrisey v. Brewer, 408 U.S. 471 (1972), both cited in Paul, supra., 424 US. at p. 711. Based on the evidence in this file the court rules that the petitioner has not proved that there is a state recognized intangible property right that attaches to an artist having once been selected to always remain within the Artist resource bank. But this does not exhaust the constitutional inquiry. The first difficulty is that the Arts Commission has not passed a rule that allows for culling of the Artists resource bank. Apparently this is the first time in the history of the agency that a decision has been made to do this [001]. For this they announce, but only within the Commission, new criteria not previously used [052-053, 075]. This court finds that surely they would have the power to‘create such a rule, it would even be a sensible action, but they have not done so. Removing artists from the Artists resource bani without statutory or regulatory authority is arbitrary and capricious even if sensible and done in good faith. On that ground alone Kogan’s petition should be, andis, granted. But there are more serious issues. ‘Kogan argues that even if he does not have an intangible property right to remain listed within the Artist resource bank the selection process — or in this case both selection and de-selection — must also not be constitutionallyKogan. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling March 5, 2010 Page 8 of 17 vague. Here Kogan cites to Anderson v. Issaquah, 70 Wa. App. 64, 75-82 (1993), for the proposition that a statute or administrative rule which Tequires the doing of an act — here qualification for selection or de-selection to be placed within the Artist resource bank — mst not be so vague that men and women of common intelligence must guess at its meaning and consequently differ as to its application. The vagueness test docs not require impossible standards on the state, and terms of art will generally be sustained (hence the Art Commission has defined certain terms of art in ‘WAC 30-02-010), and the court looks not only to the face of the rule, but also its application to the person who sought to comply with it and failed. ‘The purpose here is to avoid arbitrary and discretionary enforcement of the law. First, we look at WAC 30-40-070(4), Then we look at its application in Mr. Kogan’s situation, Rule 070(4) reads as follows: (4) Selection criteria, The highest priority is given to quality, the artistic merit of the artist and proposed artwork, and evidence of the artis’s ability to execute the work. Consideration will also be given to the structural and aesthetic integrity of any existing or proposed work. In order to achieve a diverse state art collection, which represents thie vatied means of contemporary art-making processes, priority consideration may.be given to artists who are not currently under contract, have not recently had work purchased or commissioned, or who are not represented in tho state art collection. (@) Special considerations for selection of projects under the superintendent of public instruction - the school district board of directors may appoint a representative to the agency project committee in order to participate in the selection of artists through the commission's artist resource bank seleotion process, wane So, then, the selection criteria whether by open competition, limited competition, direct solicitation or to be in the Artist resource bank (WAC 30-40-070(3)) is:Kogan v. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling March 5, 2010 Page 9 of 17 Quality - which is to be given the highest priority Artistic merit of the artist Artistic merit of the proposed artwork Evidence of the artist’s ability to execute the work Structural integrity (of existing or proposed work) Aesthetic integrity (of existing or proposed work) In addition priority may be given to: 7.1 artists not currently under contract 7.2 _ artists who have not recently had work purchased or commissioned 7.3 artists who are not yet represented in the state’s art collection. NAYES In addition the superintendent of public instruction or a local schoo! district selecting public art for primaty and secondary schools may appoint a representative to the project committee to participate in the process, It is, perhaps, an anomaly that this courtesy to the primary and secondary school system should be in's 4 instead of § 3. These sections do not speak about colleges or universities. \ Criteria seven (7) dealing with giving a priority to artists not under contract, or, without recent commissions, or, not yet represented in the state selection, is clear and not vague. What is in question is criteria one (1) through six (6). ‘These could involve terms of art'* so the court first looks at WAC 30-02-010 which defines 45 terms of art used in chapter 30 WAC. Quality is not defined, artistic merit of the artist is not defined (though ‘professional artists’ is defined at (33)), evidence of ability is not defined, structural integrity is not defined and aesthetic integrity is not defined. In short, none of the selection criteria are defined by the Arts Commission as ‘terms of art’ upon which they will rely. When a word is not defined in the WAC, even when such a word is common, such as the definition of ‘average,’ then it must be accorded its ordinary meaning, State ex. rel. Dawson v. Cascade District Court, 62 Wn. App. 587, 590 (1991). “This is an obvious pun but not inserted for humor but rather because the constitutional standards interpreted in case law carve out terms of art’ as areas of non-vagueness whore they are used.Kogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 Letter Opinion and Ruling Match 5, 2010 Page 10 of 17 If we go to a common source such as Websters Third Intemational Dictionary, Unabridged, “quality” has so many definitions that it is hardly helpful. Definition 1(a) is “a peculiar and essential character.” The word “artistic” under the first definition is simply “charaeteristic of art” and in the second definition is “characterized by taste, discrimination, and judgment or by art and skill,” while “merit” might be rendered as “worthy.” “Aesthetic” referring to aesthetics which is the branch of philosophy dealing with beauty (perhaps as distinguished from merely ‘pleasing’) while integrity in its primary definition means unimpaired or unmarred condition, or, perhaps adherence to certain values though this author finds definition 2 to be more accurate in this context, “the quality or state of being complete.” Focus is placed on these elements of the criteria because structural integrity could have either an artistic or scientific meaning — will it fall over, or, is it harmonious; and the artist’s ability to execute the work can only refer to a work yet to be completed and this panel was reviewing matters already completed. However, for considering commissions instead of completed pieces, it still could very much apply to the question of ‘scale’ where a proposal is submitted on one scale but, if selected, would be produced at a much larger scale as public art. The artists seeking fo qualify are working in the dark, blind, with faith that their work might pass Commission standards. GRUBS” Working with the bark spud peeling cedar logs for the shed Tuncover white grubs; ~ wrinkled & thick as my little finger. ‘They have powerful jaws. Working in the dark, blind, in faith, toward whatever they might become, they leave delicate etchings in the wood. Thave to say that I understand them more than the squawking, squabbling chickens who crowd in to peck them from my unprotected hand. be ™ Samuel Green (Washington State's Poet Laureate), The Grace of Necessity, Camegic Mellon University Press, 2008.Kogan v, State Arts Commission ‘Thurston County No. 08-2-02829.9 Letter Opinion and Ruling ‘March 5, 2010 Page 11 of 17 Looking at the above criteria set out in WAC 30-40-070(4) there is not « effective and meaningful guidance to applicants, to the panels, or, to the Arts Commission as whole. How can an artist determine if his or her work will be seen as one of “quality” or of having “artistic merit” or whether others sense, feel or think that this particular artist has personal “artistic merit”. Can there be an artist who does not have “artistic merit” (criteria 2) yet still produces a work of art that has “artistic merit” (criteria 3)? What does that mean? The Arts Commission could say in denying an applicant, “Yes, your work has artistic merit but we find that you personally don’t have artistic merit so you don’t meet the criteria.” A private collector can make such distinction (perhaps) but in dealing with the tax dollars and sensibilities of the community as a whole there must be more certainty as to what counts in being selected. Here there is a problem. Certainly everyone who thinks seriously about this will consider the danger of reducing art to being a craft, and although no less than craftsmanship is involved, it is something more ‘than that, and although one might argue all art is mathematics, is there not still ‘something’ about art that does not admit of being described with stated criteria the way a chair (even in its many forms) might be described, or, at a minimum, in a way that everyone will sense, feel and think alike about it? Art involves a myriad of creative activities requiring varying degrees of skill but in general it seems to respond to a specifically human need that finds it soutce'in the feelings, Perhaps the final purpose of a work of art is not so much entertainment, but the transmission, or, an opening that speaks directly to the heart, perhaps more communion than communication. '® Yet, here, isn’t the very proof of vagueness, in the criteria that have been adopted, that a professional artist such as Simon Kogan [307-309], as defined in WAC 30-02-010(33), is selected for the Artist resource bank, and enjoys that respect for over a decade, and then using the same criteria is eliminated simply because the selection panel members changed? He easily could have been eliminated by using criteria 7 — being an artist who is already well represented in commissioned public art - but that isn’t what happened, and the record shows that such was not the basis. The Anderson case, supra., which dealt with criteria for building design, faced the same issues as are present here. There such criteria as "The author is grateful to one of his teachers, the late Paul Reynard (1927-2005) for these insightsKogan v, State Arts Commission ‘Thurston County No. 08-2-02829-9 ‘Letter Opinion and Ruling ‘March 5, 2010 Page 12 of 17 “relationship with the Issaquah Valley, “appropriate proportions,” colors should be “harmonious” and seldom “bright or brilliant” and “monotony should be avoided” yet it should be “interesting,” “harmony in texture, lines and masses [is] encouraged” and so on. ‘The Court of Appeals found this did not give effective or meaningful guidance. There the Commissioners attempting to interpret and apply the code were left with only their own : individual subjective “feelings” about the image of Issaquah and as to whether the project was “compatible” or “interesting.” Anderson, supra., 70 Wa. App. at pp. 76-77. The criteria in Anderson, just like the criteria here, are unconstitutionally vague on their face. The words employed are not technical words such as those defined in WAC 30-02-010, nor do these words have a settled meaning in the common law, Id. This case is controlled * «by. the Anderson, supra., case and can not be meaningfully distinguished. Further, as these criteria were applied to Kogan they also fail to pass constitutional muster. The panelists themselves had no objective guidelines to follow and had to resort to their own subjective ‘feelings’. The Art Commission Staff prepared the panels with a list of qualities said to elaborate Rule 070(4) — that is, factors that were not adopted by rule, but passed out to the panel to guide their commenits, It did no good. below “are the official record ofthe panel process.” This invented list was to aid the panel in making specific comments [611-616, 621-622]. The artists were working in the dark, so to speak, mostly not aware any review was underway but nécessaiily relying on the published criteria of WAC 30- 40-070(4), This criteria was then unilaterally ‘elaborated’ by the Arts Commission staff, and given to the panels, who in interesting tape recorded sessions made a public record of their discussions tinkling over ambiguous amorphous impressions in their own jargon, Jn the room the women come and go Talking of Michelangelo.” For instance in the April 2008, review panel, two people simple say ‘pass’ and the third says “It’s like ten different artists did it.” [579-580]. ‘Those are 7, S.Bliot, The Love Song of J. Aifted PrigockKogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 Letter Opinion and Ruling ‘March 5, 2010 Page 13 of 17 the only comments of his elimination from the ‘roster’ review. Then in the Commission’s Response brief it is admitted that in explaining to Kogan how he failed to qualify two of these ‘elaborations” were inadvertently omitted: (@) “cohesive body of work, experience,” and (b) “conceptually enduring. 320 ‘The record shows that these were never applied in a consistent way but only subjectively, for instance, the official record comments show Kogan was rejected with the comment “Body of work is not cohesive,” [033] The actual transcript at [515-517] of the July 2008 Competition panel shows a flippancy and capriciousness in what remarks and laughter are reported as audible. At the same time Adrian Butash was rejected with the comment “Work is too cohesive.” [021]. This so-called elaboration of Rule 070(4) invented to measure “cohesiveness” was used to reject Kogan for not being sufficiently “cohesive” and at the same time was used to reject Butash for being too much “cohesive.” How can that be a meaningful elaboration and fair application of the stated and published criteria? The record is replete with troublesome examples. The July competition panels remarks about Justen Ladda is that “His work-seems so uneven” and then the decision is made we'll keep him in unless someone is against it. [523-524], Then ina patronizing way the panel is concemed if Ronald Hall is an African- American or not, and when assured that he is, only then take action [549- 550]. Then with Thomas Prochaska one comment is “yummy” and another is that if his work wasn’t already known it would be weirdest collection that they were reviewing ~ it was all over the place, but one reviewer agrees to take the word of another because in their opinion “he should have somebody ‘work with him...” [551-552], ‘The panel is concemed about Jean Mandeberg’s work but recognized that she is on the Arts Commission even though her work doesn’t exactly ‘thrill’ one panel member [567-568]. The panel first votes three ‘no’ for Julie Prather but one panel member is privately working with her and convinces the others to revote to get her in. [569-573]. Clearly the panels did not enforce, or, even employ the Rule 070(4) criteria, but rather their own capricious and arbitrary concepts of the provisions of the invented elaborations of the criteria. Then the’applications of these elaborations were as vague and undefined as those written in the * Commission Response Brief, p. 5,n, 1.Kogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 Letter Opinion and Ruling ‘March 5, 2010 Page 14 0f17 code as demonstrated ante in the record.” As held in Anderson,supra., 70 Wn. App. at p.752 “This is the very epitome of discretionary, arbitrary enforcement of the law.” “Then he to me: ‘He is his own accnser. This is Nimrod, because of whose vile plen the world no longer speaks a single tongue, “Let us leave him and not waste our speech, for every language is to him as his to others, and his is understood by nano." In Anderson the argument was advanced that aesthetic considerations were impossible to define in a code or regulations and therefore there were procedural safeguards that provided an appeal to the city council and to the courts — here the ‘safeguard’ was the appeal to the Commission and to the courts. But the so-called ‘safeguards’ here not only did not protect against arbitrary administration but magnified the problem. Reading the record, which itself is remarkable for its confused form with duplicate, triplicate and more copies of the same material and then when examined is full of inaudible and therefore unknown remarks and incomplete forms — for instance columns in spreadsheets that do not tally -- shows an arrogance and disregard and there was hardly any meaningful appeal. In fact, an outsider would sense that the decision had already been made before the appeal was even entertained. First, a reasonable request was made to have a short continuance so that Kogan could be there and present his case since he was out of the country, which was summarily denied despite this good. canse, and then his coimsel, identified as a ‘guest,’ was told you have ten minutes” and we don’t have much time and then, remarkably, when one Commission member who had been on the panel whose work was being reviewed suggested that they should recuse themselves from the appeal so as to avoid a conflict of interest (Ms, Conner) they were told it was not necessary by For a similar situation see Anderson, supra, 70 Wa. App at p.752. For further examples in the record gg0 Petitioners Opening Brit, pp. 38, ® Dante, The Divine Camedy, The Inferno, Canto XXXI, 11,7681, tens by Robot Hollander 8 Tean Hollander. ® Putting a time limit on oral arguments is common and though ten mimutes is shor, itis not necessarily ‘unreasonable in routine situations — which this was not~- but if one reads the transcript one can’t escape the impression that his sa ‘done’deal” See: pp. (460-472). None the less one cat tell what discussion was held inthe closed appeal discosion and ao its to mach to say it must bave been a “done dealKogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 ‘Letter Opinion and Ruling ‘Mareh 5, 2010 Page 15 of 17 johnson and that such could be handled later in closed session.” [463, What is more they were handed a recommended decision before they even heard the appeal [464]. 8 a ly a Kogan’s attorney presented his appeal” that the Commission is going to consider adding other artists to the Artist resource bank and not use the same criteria. Mr. Brown asks about this [484] and Ms. Taylor informs him that they do not have published criteria but work with the universities and it is just the ‘overall criteria,’ which is identified as “artistic excellence.” [485]. The minutes indicate that these 20 artists were treated differently and did not have the so-calléd ‘elaboration’ or ‘additional’ criteria applied to them as was applied by the earlier panels, and affirmed by the Commission in those instances. [503]. In any case ‘artistic excellence’ is not the written overall criteria set out in WAC 30-40-070(4). Clearly if certain! universities simply make a request they are allowed to go around the published criteria, ‘This privileged procedure offends our state Constitution, art, I, § 12 commonly referred to as the Privileges or Immunities clause and is similar, but not identical, to the Equal Protection clause found in the Fourteenth Amendment of the federal constitution, Unlike the federal-constitution which is a grant of power the state constitution is a limitation of power, Grant County Fire Protection District v. Moses Lake, 150 Wn.2" 791, 811 (2004). Because the parties have not argued any conflict between the federal constitution and the state constitution this court is not undertaking an independent analysis of the six factors set out in State v. Gunwell, 106 ‘Wn.2™ 54 (1986), but this was done in the Grant County case, which found our Constitution, art I, § 12, required an independent analysis other than that under the Equal Protection clause found in the U.S. Constitution, Amendment 14, § 1., Grant County, supra., 150 Wn.2™ at p. 811. Treating one group of artists by one set of standards and another group by another set —or no standards at all — violates Constitution, art. I, § 12. 2 Ve don’t now to whet extent Ms. Conner took place inthe discussion, if any, of ths matter but when {he Commission voted in public she then recused. [495] 2 The transcript is very confusing as to time. Itreads as if the Commnission took no recess but just kept going [472] but the minutes from November 6, 2008, [495] show a break and return to open to the public at 11:54 AM. During oral argument counsel made clear that a recess was taken and deliberations then continved in private even though this is not indicated inthe transcript, though it was found in the minutes.Kogan v. State Arts Commission ‘Thurston County No, 08-2-02829-9 Letter Opinion and Ruling March 5, 2010 Page 16 of 17 ‘An agency or Commission in the absence of clear legislative guidelines may not arbitrarily impose vague, unarticulated and unpublished standards upon the public. This court finds that the appeal procedures provided to protect the vagueness of chapter 30 WAC are illusory at best, and a sham at worst, and do not save WAC 30-40-070(4), thus the procedure in this case violates our state Constitution and is therefore declared void. CONCLUSION "The court rules that there is no statute or agency rule that allows for removing artists {rom the Artists resource bank once they have eamed that status. Removal without notice that such is even a possibility is arbitrary and capricious (even though it would be reasonable to have such arule). In the absence of rule the Commission’s action to cull the Artist resource ‘bank is void and the bank remains as it was prior to any ‘culling,’ But there are even deeper difficulties here. This court rules that the published rale criteria in WAC 30-40-070(4) is unconstitutionally void for vagueness, secondly, that the criteria that were unlawfully and unilaterally ‘elaborated’ without public notice were also both void for vagueness and unlawfully used as a rule while not properly adopted as such, thirdly that neither the published, nor the elaborated criteria, were applied in a constitutionally uniform way but violated both the Fourth Amendment and our Consitution, artJ.§12, and in fact were applied capriciously and arbitrarily based solely on personal panel participant’s subjective considerations without following any published rules, which also violates RCW 34.05.570(4)(c)(i) & (ii), and fourthly that the appeal procedure set up as a safeguard to ‘protect? this from happening pursuant to WAC 30-08-070 was in this case illusory and provided no real safeguard, and limited itself to only ‘rubber stamping’ what the panels had earlier determined without any meaningfal review. The petition is granted. The Commission’s rule, that is WAC 30-40-070(4) is declared void, and the procedure in this particular case was arbitrary and capricious and is also declared unconstitutional and void ‘These unconstitutional and capricious actions by the Arts Commission were not substantially justified and therefore Kogan is awarcied his attomney feesKogan v. State Arts Commission ‘Thurston County No. 08-2-02829-9 Letter Opinion and Ruling ‘March 5, 2010 Page 17 of 17 pursuant io RCW 4.84,350. These are to be determined at a later hearing by submission of attorney time records and other factors properly considered, After the receipt of that evidence and the opportunity to challenge that evidence, and submit their own declarations, by the Commission, the court will then make a determinatifn regarding fees and costs, Sincerely, Richard D. Hicks Superior Court Judge ce: Thurston County No. 08-2-02829-9