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Expedite
Hearing set October 31, 2013
Judge Shaller
IN THE SUPERIOR COURT OF THE STATE
OF WASHINGTON FOR THURSTON COUNTY

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ARTHUR WEST,
plaintiff,
Vs.

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No. 13-2-01603-3

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PLAINTIFFS
REPLY TO 2nd
WASHINTON STATE,
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MOTION FOR
LIQUOR CONTROL BOARD, )
SUMMARY
et al,
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JUDGMENT
defendants
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______________________________ )________________________________
Comes now the plaintiff, Arthur West, and respectfully responds to the 2 nd identical
Motion for Summary Judgment filed by the State.

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I INTRODUCTION
This case presents issues under the Open Public Meetings Act. Despite the
circumstance that all of the issues now being argued by defendants are res judicata due to
the previous determination of the Court, defendants have filed a second motion making
exactly the same arguments that have previously been rejected, a violation of CR 11.
Plaintiff hereby denies all of the various allegations made by counsel and their
clients to deny violations of the OPMA, and incorporates all of the arguments and

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exhibits previously submitted in response to the first motion making the same claims, and
in Plaintiff's Motion for Summary Judgment.
In addition, plaintiff seeks a continuance under CR 56(f) due to the extremely

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dilatory discovery tactics employed by counsel and what is apparently a pattern of


1 PLAINTIFFS
REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

suppression and spoliation of material evidence. Less than a week prior to this filing
deadline, plaintiff has received voluminous records, some of which appear to have been

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improperly and silently withheld from inspection under the PRA, and which materially
contradict the arguments made by counsel in this case. Under these circumstances a brief
continuance is necessary for the plaintiff to review the responses to discovery. Plaintiff

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has had to file documents in 2 federal cases this week and has a response due today in the
SPU video appeal in Division I that requires review of materials produced by over 10
attorneys. Under these circumstances a 2 day extension of time is reasonable.

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II THE DUTIES ESPECIALLY ENJOINED UPON BOARD MEMBERS UNDER


THE OPMA ARE NOT DEFINED WITH SUCH PRECISION AS TO LEAVE
NOTHING TO THE EXERCISE OF JUDGMENT
As the defendants readily admit, The OPMA is a complicated statute with
intricacies and nuances still being interpreted by the courts (See Renewed Motion,
page 10, lines 21-22) While plaintiff does not agree that the statute is as uncertain as the
defendants claim, they are barred and equitably estopped from now asserting that the law
(RCW 42.30) prescribes and defines a ministerial duty which is to be performed with
such precision and certainty as to leave nothing to the exercise of discretion or judgment.
See Kruse v. Lovett, 52 Wn.2d 215, 324 P.2d 819 (1958)

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The duty of an officer is ministerial, where the law prescribes and


defines a duty which is to be performed with such precision and
certainty as to leave nothing to the exercise of discretion or
judgment. Kruse, at 380
Therefore, by the defendants own admission, the duties specially enjoined upon
the Board Members of the OPMA are not ministerial in nature and cannot, under the
fundamental and clearly established maxim delegatus non potest delegare, be delegated
in the manner asserted by counsel.

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2 PLAINTIFFS
REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

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III THE PEOPLE, IN DELEGATING AUTHORITY, DO NOT GIVE THEIR


PUBLIC SEVANTS THE RIGHT TO DETERMINE WHAT IS GOOD FOR THEM
TO KNOW BY MEANS OF IMPROPER SECONDARY DELEGATIONS
The OPMA contains a powerful public policy statement. "The legislature finds and

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declares that all public commissions, boards, councils, committees, subcommittees,


departments, divisions, offices, and all other public agencies of this state and subdivisions
thereof exist to aid in the conduct of the people's business. It is the intent of this chapter

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that their actions be taken openly and that their deliberations be conducted openly." RCW
42.30.010; see Equitable Shipyards, Inc. v. State, 93 Wn.2d 465, 482, 611 P.2d 396
(1980) (the statement of purpose in the OPMA "employs some of the strongest language

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used in any legislation"). The purpose of the OPMA is to permit the public to observe all
steps in the making of governmental decisions. Cathcart v. Andersen, 85 Wn.2d 102, 530
P.2d 313 (1975). We must give the OPMA a liberal construction to further its policies and

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purpose. RCW 42.30.910.


RCW 42.30.010 further provides...The people of this state do not yield their
sovereignty to the agencies which serve them. The people, in delegating authority, do

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not give their public servants the right to decide what is good for the people to know
and what is not good for them to know. The people insist on remaining informed so
that they may retain control over the instruments they have created.

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As the State Supreme Court, sitting en bank, has expressly recognized...


(T)he general principle of law, expressed in the maxim delegatus
non potest delegare, (is) that, absent consent of the principal, a
delegated power may not be further delegated, especially when the
power involved is one calling for the exercise of discretion. Black's
Law Dictionary (4th ed.). Ledgering ex Rel Spokane County, 63
Wn.2d 94, (1963)
In re Puget Sound Pilot's Association, 63 Wn.2d 142, 145 46, 385 P.2d 711 (1963),
the court held:

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The rule is well stated in 42 Am. Jur., Public Administrative Law


73, as follows: It is a general principle of law, expressed in the
3 PLAINTIFFS
REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

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maxim delegatus non potest delegare that a delegated power may


not be further delegated by the person to whom such power is
delegated. Apart from statute, whether administrative officers in
whom certain powers are vested or upon whom certain duties are
imposed may deputize others to exercise such powers or perform
such duties usually depends upon whether the particular act or duty
sought to be delegated is ministerial, on the one hand, or on the
other, discretionary or quasi-judicial. Merely ministerial acts may
be delegated to assistants whose employment is authorized, but
there is no authority to delegate acts discretionary or quasi-judicial
in nature. . . .' (Italics ours.) (The court, quoting herein from the
trial judge's memorandum opinion.) Accord, Storey v. Seattle, 124
Wash. 598, 604, 215 P. 514 (1923).
RCW 42.30.080 provides...A special meeting may be called at any time by the
presiding officer of the governing body of a public agency or by a majority of the
members of the governing body by delivering written notice personally, by mail, by fax,

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or by electronic mail to each member of the governing body.


This duty is specially required of the members of a Board, obviously calls for the
exercise of discretion, and cannot be delegated.

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IV THE LCB'S ACTIONS WERE DELIBERATELY DESIGNED AND


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On March 22, 2013, LCB Executive director Rick Garza testified before the House
finance Committee

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...(in) the public forums the board spent four hours, usually in the
evening, taking testimony but I think a lot of the work that was done
during the morning and afternoon in meeting with the prevention
community, with city officials and county officials separately and then
with law enforcement and I think that it was in those meetings that we
learned a lot about some of the issues and challenges that we have at the
Liquor Control Board. And I think the first one we would move to is
medical marijuana...

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REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

In light of these formally attested circumstance he Court is compelled rule in


accord with Clark v. City of Lakewood that the LCBs violations of the OPMA

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undermined the legitimacy of the I-502 Rules, since the principle that the actions of
entities like the LCB that are taken in violation of the OPMA or tainted by secret
proceedings may properly be voided is also clearly established.

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The Act provides that any action taken at meeting failing to comply with the open
meeting requirements will be null and void. RCW 42.30.060(1). OPAL v. Adams County,
128 Wn.2d 869, 913 P.2d 793, (1996). In this case, the actions of the LCB were
deliberately designed to evade the OPMA, a circumstance that mterially undercuts the
evidentiary foundation for the groups actions, as described in Clark.
Here, whereas the majority of the Task Force's meetings leading up
the Ordinance's passage were conducted behind closed doors, the
City Council's actual passage of the Ordinance occurred at a public
meeting on May 18, 1998. Therefore, the Ordinance is not null and
void under the OPMA. Id. We conclude, however, that any actions
taken at the Task Force's meetings that were closed to the public are
null and void, thereby potentially undercutting the evidentiary
foundation for the Ordinance, as we discuss in the next section
below. Id. at 883, 913 P.2d 793. Clark, supra, Citing OPAL,
(emphasis added)
The actions of the LCB in having many more secret meetings than public forums
and doing a lot of the work in the secret sessions demonstrate the public forums and
were merely a pretext for the real work, work that was knowingly and illegally performed
behind a specious veil of secrecy in violation of the OPMA.
V THE WITHHOLDING OF MATERIAL EVIDENCE UNDER CLAIM OF
PRIVILEGE IS IMPROPER AND IN ANY EVENT REQUIRES THAT THE
DEFENDANTS' MOTION BE DENIED

The defendants' refusal to produce the very evidence relied upon by the court
in Cathcart v. Anderson to exonerate the dean and faculty in that case from claims
5 PLAINTIFFS
REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

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of knowing violation is improper under the precedent of Dike, Maxon and Dietz, and
further raises a presumption and inference fatal to the defendant's motion for
summary judgment.

Because the privilege sometimes results in the exclusion of


evidence otherwise relevant and material, and may thus be contrary
to the philosophy that justice can be achieved only with the fullest
disclosure of the facts, the privilege is not absolute; rather, it is
limited to the purpose for which it exists. Dike v. Dike, 75 Wn.2d
1, 11, 448 P.2d 490 (1968); State v. Maxon, 110 Wn.2d 564, 567,
756 P.2d 1297 (1988) (refusing to recognize parent-child
testimonial privilege). As the United States Supreme Court has
said:
The common-law principles underlying the recognition of
testimonial privileges can be stated simply. "'For more than three
centuries it has now been recognized as a fundamental maxim that
the public . . . has a right to every man's evidence. When we come
to examine the various claims of exemption, we start with the
primary assumption that there is a general duty to give what
testimony one is capable of giving, and that any exemptions which
may exist are distinctly exceptional, being so many derogations
from a positive general rule.'" United States v. Bryan, 339 U.S.
323, 331, 70 S. Ct. 724, 730, 94 L. Ed. 884 (1950) (quoting 8 J.
WIGMORE, EVIDENCE 2192, p. 64 (3d ed. 1940)). Jaffee v.
Redmond, 518 U.S. 1, 116 S. Ct. 1923, 1928, 135 L. Ed. 2d 337
(1996). Employing the attorney-client privilege to prohibit
testimony must be balanced against the benefits to the
administration of justice stemming from the general duty to "give
what testimony one is capable of giving." Dietz v. Doe, 131 Wn.2d
835, 935 P.2d 611, (1997), citing Bryan, at 331.

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Further, as the Supreme Court noted in Pier 67 v. King County, 89 Wn.2d 379,
(1977)...

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We have previously held on several occasions that where relevant


evidence which would properly be a part of a case is within the
control of a party whose interests it would naturally be to produce
it and he fails to do so, without satisfactory explanation, the only
inference which the finder of fact may draw is that such evidence
would be unfavorable to him. In so holding, we have noted, "'[t]his
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REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

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rule is uniformly applied by the courts and is an integral part of our


jurisprudence.'" BRITISH COLUMBIA BREWERIES (1918) LTD.
v. KING COUNTY, 17 Wn.2d 437, 455, 135 P.2d 870 (1943)
(quoting with approval 20 Am. Jur. 183, at 188). SEE BENGSTON
v. SHAIN, 42 Wn.2d 404, 255 P.2d 892 (1953); KRIEGER v.
MCLAUGHLIN, 50 Wn.2d 461, 313 P.2d 361 (1957).

The evidence of what counsel advised the LCB Board members on compliance

with the OPMA is material to this case, and its withholding requires an inference be

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drawn that this evidence would be unfavorable to the defendants. Such a


presumption is fatal to the defendant's motion for summary Judgment on the issue
of knowledge.

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VI CONCLUSION
The actions of the LCB were deliberately taken to deliberate and make

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crucial policy decisions behind closed doors with law enforcement, local government

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and federal officials. In this context, the evening public forums appear to have been

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staged as cover for the secret daytime meetings where, as Rick Garza so publicly
testified.. a lot of the work...was done.

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Plaintiff West is not clairvoyant or a gypsy mind reader with occult powers to testify as to
what the LCB Board members knew, and it is unreasonable to expect such unattainable
evidence. The record in this case and the exhibits attached to the appended declaration, as well as

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those previously submitted demonstrate that the Board members had knowledge of the
requirements of the OPMA, and yet attended private meetings with law enforcement, local
government, and the prevention community where a lot of the work on the I-502 rules was
done Since no reliable record exists of the actual content if these secret meetings the LCB's
action is un-reviewable under the APA as there can be no valid administrative record of a rule

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making process substantially based upon over a dozen secret meetings that were not recorded
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REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501

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The Board should be found to have been in knowing violation of the OPMA and the rules
should be similarly invalidated under the authority of Clark v. City of Lakewood.
Done October 20, 2013, in Olympia.

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ARTHUR WEST
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8 PLAINTIFFS
REPLY OF
OCTOBER 20

ARTHUR WEST
120 State Ave NE #1497
Olympia, WA 98501