CITY OF EDMONDS, a municipality; DAVE EARLING, Mayor of the City of Edmonds, in his official capacity; EDMONDS POLICE DEPARTMENT, a department of the City of Edmonds; and AL COMPAAN, Chief of Police, in his official capacity, Appellants, v. BRETT BASS, an individual; SWAN SEABERG, an individual; and CURTIS McCULLOUGH, an individual, Respondents.
No. 80755-2-I
THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE
FILED 2/22/2021
PUBLISHED OPINION
In 2018, the Edmonds City Council enacted Ordinance Number 4120, now codified as Edmonds City Code (ECC) 5.26.010-070 (the Ordinance). The Ordinance states in part:
It shall be a civil infraction for any person to store or keep any firearm in any premises unless such weapon is secured by a locking device, properly engaged so as to render such weapon inaccessible or unusable to any person other than the owner or other lawfully authorized user. Notwithstanding the foregoing, for purposes of this section, such weapon shall be deemed lawfully stored or lawfully kept if carried by or under the control of the owner or other lawfully authorized user.
EDMONDS CITY CODE 5.26.020. It further provides:
It shall be a civil infraction if any person knows or reasonably should know that a minor, an at-risk person, or a prohibited person is likely to gain access to a firearm belonging to or under the control of that person, and a minor, an at-risk person, or a prohibited person obtains the firearm.
EDMONDS CITY CODE 5.26.030. The Ordinance also contains a penalty schedule, subjecting violators of ECC 5.26.020 and .030 to fines ranging from $500 to $10,000. EDMONDS CITY CODE 5.26.040.
Also in 2018, Washington voters passed Initiative 1639, which makes it a crime to store or leave a firearm “in a location where the person knows, or reasonably should know, that a prohibited person may gain access to the firearm, . . . a prohibited person obtains access and possession of the firearm” and subsequently misuses that firearm.
Soon after the Edmonds City Council enacted the Ordinance, two gun-owning residents of Edmonds brought this suit under the Uniform Declaratory Judgment Act (UDJA) against the City of Edmonds, its Mayor, the Edmonds Police
The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in
RCW 9.41.300 , and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.
The City moved to dismiss this challenge under CR 12(b)(1), arguing the plaintiffs lacked standing to challenge the Ordinance because none alleged an intent to violate its terms.1 At the Gun Owners’ request, the trial court deferred ruling on the motion to dismiss to allow the Gun Owners to amend their complaint or to submit declarations to support standing and permitted the parties to submit additional briefing thereafter. The Gun Owners filed an amended complaint, in which they named a third individual plaintiff, also a resident of Edmonds, and alleged more facts about the Gun Owners’ firearms storage practices.
After receiving additional briefing, the trial court concluded that the Gun Owners had standing to challenge ECC 5.26.020, the storage provision of the Ordinance, but not .030, the unauthorized access provision. But it also concluded that “as Plaintiffs have standing to raise preemption to at least one portion of the ordinance and such challenge is ripe, it is further ORDERED that defendants’ Motion to Dismiss is denied.”
The Gun Owners moved for summary judgment, arguing that
Once again, the City argued the Gun Owners lacked standing to challenge the unauthorized access provision of the ordinance, ECC 5.26.030. The City cited
The trial court granted the Gun Owners’ motion for summary judgment in part, concluding that
The City appeals the summary judgment order invalidating ECC 5.26.020 and the Gun Owners cross appeal the dismissal of their challenge to ECC 5.26.030 on standing grounds.
A. Standing
The Gun Owners argue the trial court erred in concluding that they lacked standing to challenge ECC 5.26.030, the unauthorized access provision. We agree. The Gun Owners have standing to challenge both ECC 5.26.020 and .030. Even if the Gun Owners have no intention of violating ECC 5.26.030, whether that provision is preempted by state law is an issue of public importance sufficient to confer standing.
The UDJA provides that “[a] person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the statute, municipal ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”
A party initiating a UDJA action must establish the existence of a justiciable controversy, including standing. Diversified Indust. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973). A party initiating a pre-enforcement challenge to an ordinance must show interests that are “direct and substantial,” rather than potential, theoretical, abstract, or academic. To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001). “The kernel of the standing doctrine is that one who is not adversely affected by a statute may not question its validity.” Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). A party must demonstrate that they have suffered or will suffer an “injury in fact.” Lakehaven Water and Sewer Dist. v. City of Federal Way, 195 Wn.2d 742, 769, 466 P.3d 213 (2020).
Moreover, our Supreme Court has recognized an exception to Diversified‘s standing test when a party raises an issue of “broad overriding public import.” Walker v. Munro, 124 Wn.2d at 432; Lewis County v. State, 178 Wn. App. 431, 440 (1994); Diversified, 82 Wn.2d at 814-815. Whether an issue is one of major public importance depends on the extent to which public interest would be enhanced by reviewing the case. Snohomish County v. Anderson, 124 Wn.2d 834, 841, 881 P.2d 240 (1994) (emphasis omitted). We conclude this appeal presents an issue of significant public interest and considering the challenge to the storage and the unauthorized access provisions in a single pre-enforcement challenge advances the public interest.3
Second, whether
For these reasons, we conclude that the public would benefit greatly by decision on the validity of both ECC 5.26.020 and 5.26.030 and we conclude the Gun Owners have standing on that basis.
B. Preemption
The City argues that the trial court erred in holding that
Appellate courts review an order granting summary judgment de novo and perform the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Properties, LLC, 196 Wn.2d 199, 205, 471 P.3d 871 (2020). Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014).
Municipal ordinances are presumed to be valid and grants of municipal power are to be liberally construed. City of Bothell v. Gutschmidt, 78 Wn. App. 654, 659–60, 898 P.2d 864 (1995). Similarly, the person challenging an ordinance bears the burden of proving that the ordinance is unconstitutional. Id. at 660. Nevertheless, an ordinance will be found to be invalid if a general statute preempts city regulation of the subject. Brown v. City of Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991). When the legislature has expressly stated its intent to preempt the field, a city may not enact any ordinances affecting the given field. Id. A state statute will be deemed to preempt a city ordinance when there is an express legislative intent to occupy the entire field. Watson v. City of Seattle, 189 Wn.2d 149, 171, 401 P.3d 1 (2017).
Our legislature expressed its intent to “fully occup[y] and preempt[] the entire field of firearms regulation.”
The primary goal of statutory interpretation is to determine and give effect to the legislature‘s intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014). To determine legislative intent, we first look to the plain language of the statute. Id. If a statute is unambiguous, Washington courts apply the statute‘s plain meaning as an expression of legislative intent without considering other sources of such intent. Id. at 762. We conclude
The City first argues the phrase “entire field of firearms regulation” is ambiguous because it does not establish the field‘s boundaries. The legislature described the field as “including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms.”
But our Supreme Court generally recognizes that a statute that uses the term “including” is one of enlargement, not restriction. Queets Band of Indians v. State, 102 Wn.2d 1, 4, 682 P.2d 909 (1984). “[T]he word include does not ordinarily introduce an exhaustive list, while comprise . . . ordinarily does.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS at 132 (2012). The legislature‘s use of the word “including” plainly indicates a list that is illustrative and not exhaustive. The absence of the word “storage” from the list in
The City argues that the doctrine of ejusdem generis should apply to render the statutory list exhaustive, rather than illustrative. Under this rule, specific words modify and restrict the meaning of general words when they occur in a sequence. State v. Flores, 164 Wn.2d 1, 13, 186 P.3d 1038 (2008). But State v. Larson, 184 Wn.2d 843, 849, 365 P.3d 740 (2015), a case on which the City relies for this argument, actually supports a contrary result. In Larson, the Supreme Court held that a criminal statute defining retail theft, former
Moreover, under
The prior cases discussing the scope of preemption under
In Cherry v. Municipality of Metropolitan Seattle, 116 Wn. 2d 794, 795, 808 P.2d 746 (1991), the Supreme Court ruled that
The Supreme Court rejected that argument, holding that
Neither of the holdings of Pacific Northwest applies here. The City does not contend its ordinance is permitted under the carve-out of
Finally, in Kitsap County v. Kitsap Rifle & Revolver Club, 1 Wn. App. 2d 393, 405 P.3d 1026 (2017), Division Two of this court held that a Kitsap County
The court alternatively held that even if the permit requirement were a “firearm regulation,”
Kitsap County is distinguishable because the local ordinances at issue are so different. The Edmond Ordinance, unlike Kitsap County‘s shooting range permit requirement, directly regulates the manner in which gun owners possess, store, and allow others to access their firearms. It is not regulating a business‘s activities, like the county ordinance does. And the City does not contend here that its Ordinance is an exercise of police power under
We therefore conclude that
CONCLUSION
Although the trial court erred in dismissing the Gun Owners’ challenge to ECC 5.26.030 on standing grounds, we affirm the trial court‘s determination that
Affirmed in part, reversed in part.
Andrus, A.C.J.
WE CONCUR:
Bowman, J.
Smith, J.