Utter v. Building Industry Ass’n of Washington

In this case, a Washington state intermediate appellate court ruled that the “citizen’s action” provision of Washington’s campaign finance laws bars citizens from bringing suit to enforce those laws if the attorney general of the state has investigated allegations of wrongdoing. The statute, however, provides that a citizen’s action is barred only if the attorney general has brought suit. The plaintiffs in the case sought review by the Washington Supreme Court, and Public Citizen filed an amicus curiae memorandum supporting their petition. The Washington Supreme Court granted review, and Public Citizen filed an amicus brief on the merits arguing that the plain meaning of the statute is that a citizen’s suit is foreclosed only if the attorney general brings a lawsuit, not by a mere referral of allegations for investigation that does not lead to the commencement of formal proceedings. The Washington Supreme Court accepted our argument and reversed. The court also addressed whether the plaintiff’s evidence supported their claim that there was a violation of the campaign finance laws, and ruled largely in their favor.

Following the Washington Supreme Court’s decision, the defendant in the case filed a petition for a writ of certiorari in the U.S. Supreme Court addressing a federal constitutional issue discussed in the Washington Supreme Court’s decision: whether a state may classify an organization as a political committee if one of its principal purposes is election activity (as the Washington court held), or whether election activity must be the organization’s sole principal purpose. Public Citizen at this point joined as co-counsel to the plaintiffs to assist them in preparing and filing a brief in opposition to the petition for certiorari. The brief in opposition argued that the U.S. Supreme Court lacks jurisdiction because the state court’s decision is not final, and that the issue does not merit review. The Court denied the petition.