Const. art. I, § 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 scheduled for jury trials in early 2022 or, in the 55-plaintiff case, early 2023. Martin Exs. C-F. Those trials may not occur in the timeframe Plaintiffs desire, but they are all the Constitution requires. Nothing in article I, section 21 imposes a timing requirement, and reading one in would render superfluous the speedy trial right specifically and exclusively conferred upon criminal defendants in the Constitution’s very next section. Nor is there any precedent for Plaintiffs’ novel reading; little surprise, given the practical impossibilities that would flow from a civil speedy trial right. Plaintiffs have no viable claim for relief under article I, section 21 because the provision: (1) does not contain a civil speedy trial right, (2) does not guarantee Plaintiffs the additional resources they seek; and (3) does not authorize court-ordered funding. Article 1, section 21 does not guarantee a speedy civil trial. It says only that “[t]he right of trial by jury shall remain inviolate.” Courts construing the Constitution may not supply absent words, particularly where context shows the omission was deliberate. See City of Bothell, 172 Wn.2d at 229 (courts may not “engraft” provisions onto the Constitution). Yet that is exactly what Plaintiffs seek. The neighboring provision does contain a speedy trial right, but it expressly limits that right to “criminal prosecutions.” Const. art. I, § 22. This court should not construe section 21 (or section 10) to contain a hidden speedy trial right in civil cases, as doing so would render superfluous section 22’s speedy trial right for criminal defendants. See Farris v. Munro, 99 Wn.2d 326, 333, 662 P.2d 821

(1983) (“[T]he constitution, like statutes, should be construed so that no portion is rendered superfluous.”). Plus, maintaining the Framers’ distinction between civil and criminal trials makes sense: whereas civil proceedings must balance the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 “corollary” rights of plaintiffs and defendants, King v. Olympic Pipeline Co., 104 Wn. App. 338, 362, 16 P.3d 45 (2000), as amended on reconsideration (Feb. 14, 2001), criminal cases pose a more one-sided risk from delay, given the “oppressive pretrial incarceration” and “anxiety and concern of the accused” that can result, State v. Ollivier, 178 Wn.2d 813, 840, 312 P.3d 1 (2013) (cleaned up). This Court should not create a speedy civil trial right out of whole cloth. Washington courts have long understood section 21 as merely “a limitation on the right of the legislature to take away the right of trial by jury.” Nielson v. Spanaway Gen. Med. Clinic, 85 Wn. App. 249, 255, 931 P.2d 931 (1997) (cleaned up)). Furthermore, the “right of trial by jury is not limitless.” Davis v. Cox, 183 Wn.2d 269, 289, 351 P.3d 862 (2015). In civil trials, it “guarantees litigants the right to have a jury resolve questions of disputed material facts,” id., but it is not an affirmative guarantee of a civil trial within a certain timeframe, or where there are no material facts in dispute. See Furnstahl v. Barr, 197 Wn. App. 168, 175, 389 P.3d 635 (2016) (explaining that the “core” protection of the jury trial right is a litigant’s “right to have a jury resolve questions of disputed material facts”). That is why summary judgment (for instance) does not infringe the right to a jury trial. LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989). Again, Plaintiffs do not allege any infringement of their right to have disputed factual issues determined by juries in their underlying tort cases. Their request for systemic funding increases to speed the resolution of their civil cases simply does not implicate article 1, section 21. Additionally, Plaintiffs’ assertion that section 21 entitles them “to produce a modern trial” and receive “technological upgrades” is contrary to Washington

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Supreme Court precedent. FAC ¶¶ 5.55, 10.4. Under controlling precedent, section 21 conveys a “right to have factual questions decided by the jury,” State v. Montgomery, 163 Wn.2d 577, 590, 183 P.3d 267 (2008), not a right to present to the jury using modern media. Also, “the extent of the right must be determined from the law and practice that existed in Washington at the time of our constitution’s adoption in 1889.” State v. Smith, 150 Wn.2d 135, 151, 75 P.3d 934 (2003). This inquiry looks to “the scope of the right” and “the causes of action to which it applies”—and the “essence of the right’s scope” is the “jury’s fact finding province.” Sofie v. Fibreboard Corp., 112 Wn.2d 636, 645, 771 P.2d 711 (1989). In other words, the right centers on the jury’s fact-finding role; it has never been understood to entitle civil litigants to publicly funded, state-of-the-art courtroom technology. Even if Plaintiffs had alleged a violation actionable under section 21—and they have not—that section still does not authorize a court to order the wideranging funding that Plaintiffs seek. See FAC pp. 48-53. “The only remedy” for a violation of the right to a jury trial “is to grant a new trial.” Robinson v. Safeway Stores, 113 Wn.2d 154, 160, 776 P.2d 676 (1989). That exclusive remedy not only precludes the relief Plaintiffs seek here, but also underscores that the jury trial right implicates whether, not when or how, a jury trial is held. This claim, too, fails as a matter of law and must be dismissed.

D. Plaintiffs’ other claims depend upon, and fail with, their underlying claims

Plaintiffs’ remaining claims hinge on the success of those addressed above. They should be dismissed for the same reasons.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 The Fourth Cause of Action seeks a “declaratory judgment” on one or more of the constitutional grounds discussed above.18 FAC ¶¶ 9.1-9.2. Because the constitutional claims fail as a matter of law, Plaintiffs’ request for declaratory relief should be denied and the claim dismissed. See Thomas v. Lehman, 138 Wn.

App. 618, 627, 158 P.3d 86 (2007). The Fifth Cause of Action simply seeks injunctive relief. FAC ¶¶ 10.1-10.4. But “an injunction is a remedy, not an independent cause of action.” Markoff v. Puget Sound Energy, 9 Wn. App. 2d 833, 851, 447 P.3d 577 (2019). Because the substantive claims fail, so does the plea for relief. The Sixth Cause of Action alternatively seeks a writ of mandamus. FAC ¶¶ 11.1-11.5. But mandamus “is an extraordinary remedy,” not a freestanding cause of action. Pimentel, 197 Wn.2d at 370 (cleaned up). Mandamus is appropriate only in cases involving “a clear duty to” perform “a mandatory ministerial” act. Id. at 370, 372 (cleaned up). The novel “duties” Plaintiffs allege are far from “clearly established,” nor is the extraordinary relief they seek “ministerial.” Moreover, mandamus is not available because, as discussed above,

Plaintiffs have several alternative remedies available. Supra at 20-21. The mandamus claim should also be dismissed.

18 Among other things, the Fourth Cause of Action seeks a declaration that the State’s current funding “violates the Separation of Powers doctrine.” FAC ¶ 9.1. To the extent that statement could be construed as raising a distinct separation-of-powers claim, that claim fails as a matter of law for the reasons discussed in Parts I, II, and III.A, supra.

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IV. Dismissal with Prejudice Is Warranted

This Court has discretion to dismiss a complaint with prejudice where, as here, “amendment would be futile.” Rodriguez, 144 Wn. App. at 730. For the reasons discussed above, Plaintiffs’ claims are fundamentally flawed as a matter of law such that further amendment could not conceivably cure their defects. The recently amended complaint comes no closer to stating a claim than the original complaint, confirming that further amendment would be futile. Dismissal with prejudice is warranted.

CONCLUSION

The State respectfully requests that the Court dismiss the complaint with prejudice.

Dated: August 13, 2021 I certify that this motion/memorandum contains 8,392 words, in compliance with the Local Civil Rules. s/ Gregory F. Miller Harry H. Schneider, Jr., WSBA No. 9404 Gregory F. Miller, WSBA No. 56466 David T. Martin, WSBA No. 50160

Perkins Coie LLP

1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Telephone 206.359.8000 Facsimile 206.359.9000 Email: HSchneider@perkinscoie.com Email: GMiller@perkinscoie.com Email: DMartin@perkinscoie.com Kristin Beneski, WSBA No. 45478 Washington Attorney General’s Office 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744 kristin.beneski@atg.wa.gov

Counsel for Defendant State of Washington

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CERTIFICATE OF SERVICE

On August 13, 2021, I caused to be served upon the below named counsel of record, at the address stated below, via the method of service indicated, a true

and correct copy of the foregoing document.

Karen K. Koehler Garth L. Jones Daniel R. Laurence Gemma N. Zanowski Edward H. Moore Stritmatter Kessler Koehler Moore Attorneys for Plaintiffs Via hand delivery Via U.S. Mail, 1st Class, Postage Prepaid Via Overnight Delivery Via Facsimile X Via Eservice

I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

EXECUTED at Seattle, Washington, on August 13, 2021.

s/ June Starr June Starr, Legal Assistant

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