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Docket Number

No. 84501-8.

Advocates

Advocates for Responsible Development and John E. Diehl, pro se. Robert M. McKenna, Attorney General, Alan D. Copsey, Deputy Solicitor General, and Jerald R. Anderson, Senior Counsel; and Stephen T. Whitehouse, for respondents.

Judges

PER CURIAM

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Smart Summary

Advocates for Responsible Development v. Western Washington Growth Management Hearings Board

Factual and Procedural Background

In 2006, Advocates for Responsible Development (ARD) challenged three proposed Mason County land use ordinances. After the county adopted the ordinances, ARD president John Diehl sought review before the Western Washington Growth Management Hearings Board both on ARD’s behalf and individually. [1]

The board dismissed Diehl for lack of personal participation standing but held that ARD had standing and that Diehl could represent ARD before the board as a nonlawyer member. The board ultimately ruled that the county had violated the Growth Management Act in adopting one ordinance. [2]

Diehl and ARD sought judicial review. The superior court affirmed and ruled that Diehl could not represent ARD in court. The Court of Appeals affirmed and imposed attorney-fee sanctions under RAP 18.9(a), finding the lay-representation argument frivolous, although it found Diehl’s personal-standing argument nonfrivolous. [3][4]

The Washington Supreme Court granted review and reversed the Court of Appeals. [5]

Legal Issues Presented

Whether the Court of Appeals properly imposed sanctions under RAP 18.9(a) on the ground that the appeal was frivolous. [4][6]
Whether an appeal containing at least one debatable issue may be deemed frivolous as a whole when another issue is considered meritless. [7]

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reid v. Dolton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004)	RAP 18.9(a) permits appellate attorney-fee sanctions, terms, or compensatory damages for a frivolous appellate action.	The court cited the decision in describing the authority for sanctions under RAP 18.9(a). [6]
Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005)	An appeal is frivolous when the entire record shows no debatable issue on which reasonable minds could differ and no possibility of reversal.	The court applied this standard and emphasized that doubts about frivolousness must be resolved in favor of the appellant. [6]
Vt. Agency of Natural Res. v. Upper Valley Reg'l Landfill Corp., 159 Vt. 454, 458, 621 A.2d 225 (1992)	A foreign court had permitted nonattorney representation of an environmental organization by a lay representative sharing a common interest with the organization.	The court relied on that authority to conclude that the lay-representation issue was not so devoid of merit as to be frivolous, while not deciding that the argument was correct. [7]
Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 443, 730 P.2d 653 (1986)	Raising at least one debatable issue precludes treating an appeal as frivolous in its entirety.	The court applied this principle because the Court of Appeals had acknowledged that Diehl’s personal-standing issue was not frivolous. [7]

Court's Reasoning and Analysis

Under RAP 18.9(a), sanctions are available when an opposing party files a frivolous appellate action. An appeal is frivolous only when, considering the entire record, it presents no debatable issues on which reasonable minds might differ and no possibility of reversal; doubts must be resolved in favor of the appellant. [6]

The Supreme Court held that the lay-representation issue was not frivolous because a foreign court had permitted comparable nonattorney representation of an environmental organization. Although the Supreme Court did not hold that Diehl’s argument had merit, it concluded that the argument was not totally devoid of merit. [7]

Additionally, the Court of Appeals had expressly found that Diehl’s personal-standing argument was not frivolous. Because an appeal raising at least one debatable issue cannot be frivolous as a whole, the presence of that issue independently defeated sanctions under RAP 18.9(a). [7]

Holding and Implications

REVERSED: The Washington Supreme Court reversed the Court of Appeals’ award of attorney fees under RAP 18.9(a). [8]

The direct effect was to eliminate the sanctions imposed against Diehl and ARD. The opinion discusses no broader implications, and no new precedent was set by the disposition. [7][8]

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ADVOCATES FOR RESPONSIBLE DEVELOPMENT ET AL., Petitioners, v. THE WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD ET AL., Respondents.

PER CURIAM

¶1 In a challenge to a county's land use ordinances by a nonprofit association, the Court of Appeals held that the association's president did not have personal participation standing to appeal the ordinances to the Western Washington Growth Management Hearings Board and that he could not represent the association before the courts as a layperson. Finding frivolous the argument that the president could represent the organization in court, the Court of Appeals imposed sanctions. The president and the association petitioned for this court's review, challenging the sanctions. We grant the petition and reverse the Court of Appeals for the reasons discussed below.

¶2 In 2006 Advocates for Responsible Development (ARD) challenged three proposed Mason County land use ordinances through two letters that John Diehl, its president, submitted to the county on ARD's behalf. After the county adopted the ordinances, Diehl, acting again on ARD's behalf and inserting himself individually as a petitioner, sought review of the ordinances before the Western Washington Growth Management Hearings Board.

¶3 The Shaw Family LLC, whose property was affected by at least one of the ordinances, intervened in ARD's appeal. Shaw Family moved to dismiss Diehl from the action on the ground that Diehl had no participation standing under the Growth Management Act (ch. 36.70A RCW) because he did not appear at the county level individually. Shaw Family also moved to dismiss ARD on the ground that ARD was not a registered entity with either the Secretary of State or the Department of Revenue. The board dismissed Diehl for lack of personal standing, but it ruled that ARD had participation standing by virtue of Diehl's remarks on ARD's behalf at the county level. The board also ruled that Diehl, though not an attorney, could represent ARD in proceedings before the board. See WAC 242-02-110(1) (nonlawyer member of a group may represent group before growth management hearings board). After a hearing on the merits of ARD's claims, the board ruled that the county violated the Growth Management Act in adopting one of the ordinances.

¶4 Diehl and ARD (represented by Diehl) sought judicial review, challenging, among other things, the board's ruling that Diehl lacked personal participation standing. The superior court affirmed, further ruling that Diehl could not represent ARD in court.

¶5 The Court of Appeals affirmed and awarded Shaw Family attorney fees as sanctions against Diehl and ARD for filing a frivolous appeal pursuant to RAP 18.9(a). Specifically, the court found frivolous the argument that Diehl could represent ARD in court. But the court found not frivolous Diehl's argument that he had personal standing before the board.

¶6 RAP 18.9(a) permits an appellate court to award a party attorney fees as sanctions, terms, or compensatory damages when the opposing party files a frivolous appellate action. Reid v. Dolton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004). An appeal is frivolous if, considering the entire record, the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ, and that the appeal is so devoid of merit that there is no possibility of reversal. Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005). All doubts as to whether the appeal is frivolous should be resolved in favor of the appellant. Id.

¶7 The Court of Appeals erroneously imposed sanctions under RAP 18.9(a) for filing a frivolous appeal. The issue of lay representation is not frivolous because at least one court in a foreign jurisdiction has allowed nonattorney representation of an environmental organization where the lay representative shared a common interest with the organization. See Vt. Agency of Natural Res. v. Upper Valley Reg'l Landfill Corp., 159 Vt. 454, 458, 621 A.2d 225 (1992). While we do not hold that the argument has merit, it is not so totally devoid of merit as to be frivolous. Moreover, even if the issue was frivolous, it did not alone justify the Court of Appeals in awarding sanctions under RAP 18.9(a) because the court specifically acknowledged that the issue of Diehl's personal standing was not frivolous. Raising at least one debatable issue precludes finding that the appeal as a whole is frivolous. See Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 443, 730 P.2d 653 (1986). Because the action was not frivolous in its entirety, the Court of Appeals should not have awarded attorney fees as sanctions.

¶8 The Court of Appeals award of attorney fees under RAP 18.9(a) is reversed.

ADVOCATES v. HEARINGS BD