Does Article I, Section 12 of the Washington Constitution Apply to Classes of Corporations?

Earlier today, the International Franchise Association filed a lawsuit against Seattle’s $15 minimum wage, claiming that the ordinance unfairly discriminated against franchisees as a class. Part of the claim (perhaps the strongest part) is based on Article I, Section 12 of the Washington State Constitution, which reads in its entirety:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

The IFA claims that the minimum wage ordinance violates Art. I, Sec. 12 because it treats one class of corporations (franchisees) differently than other corporations.

But why do “classes” of corporations receive any protection under the Washington Constitution? The text of the provision specifically talks about granting privileges to “any citizen” (the singular), any “class of citizens” (the plural), or any “corporation” (the singular). There is no language regarding “classes” of corporations.

Under the usual rules regarding the interpretation of constitutional texts, the singular “corporation” next to the specific inclusion of classes of non-corporate citizens would compel the conclusion that classes of corporations are not protected by the provision.

I did a bit of quick research this afternoon through Washington Supreme Court cases, and none of them seem to directly address this question—though they do apply the provision to classes of corporations. It seems like IFA’s complaint has some basis in Washington’s case law, but I wonder if it has any basis in Washington’s Constitution?

SCOW: Liquor Initiative Upheld 5-4 (in a boring series of opinions)

So as you probably already know, the Washington Supreme Court upheld I-1183, the liquor privatization initiative, in Washington Association for Substance Abuse and Violence Prevention v. State of Washington (Wash., May 31, 2012). While the decision is politically and practically important, I’ve gotta say that I don’t think the opinions themselves are that interesting legally. I mean, it’s sort of a judgment call whether the various parts of the initiative are sufficiently related to be a “single subject” or whether the title of the initiative is descriptive enough to satisfy the “subject-in-title” rule. Some judges would call it one way, some would call it the other, but there’s not much more to it than that.

But hey, I don’t do this for me, I do it for the people! So here are some thoughts on the three (yes, three!) decisions, starting with the opinion of the Court: Continue reading

SCOW: How to Apply an “Ensuing Loss” Clause and the “Efficient Proximate Clause” Rule

A while back (well, not too long ago, but it was May 17th, which seems like eons ago in internet news cycle time) the Supreme Court issued a useful opinion on the meaning and interpretation of “resulting loss” or “ensuing loss” clauses in all-risk insurance policies and the application of the “efficient proximate cause rule.” The case was Vision One, LLC v. Philadelphia Indemnity Insurance Company (Wash., May 17, 2012) (en banc). Continue reading

SCOW: When Does a Parent Provide “Regular[] . . . Support”?

I’m not in the mood to be depressed this afternoon, nor am I in the mood to make you depressed, so I’m going to skip over most of the facts in Estate of Bunch v. McGraw Residential Center (Wash., May 3, 2012), which the Supreme Court handed down last week. Basically, Ashlie Bunch lived for a while with her mother, Amy Kozel, in Florida. Then in 2003 Ashlie moved to Washington to live with her father, Steven Bunch, which she did until 2008, when she died.

Bunch claimed (and we’ll assume) that after Ashlie moved to Washington, Kozel essentially had no relationship with Ashlie.  Bunch sued defendant McGraw Residential Center pursuant to RCW 4.24.010, which provides a cause of action for a parent based on the injury or death of a child. Kozel attempted to intervene in the suit, since she was also Ashlie’s parent. 

“The fundamental point of contention in this case is whether Kozel has standing to proceed under RCW 4.24.010.” The relevant statutory language reads:

A mother or father, or both, who has regularly contributed to the support of his or her minor child, and the mother or father, or both, of a child on whom either, or both, are dependent for support may maintain or join as a party an action as plaintiff for the injury or death of the child.

 (The emphasis is in the Court’s opinion, though not in the statute.) According to the Court, “the key question is whether the term ‘has regularly contributed’ requires that the support be continuing at the time of the child’s death.” Since Kozel was not “regularly contributing” support at the time of Ashlie’s death, a requirement of support up to the time of death would bar Kozel’s participation in the lawsuit. Continue reading

SCOW: Cell Phone Termination Penalties Are Not Penalties

I suspect that most of you have signed up for a one- or two-year service plan with a cell phone company. And I suspect that as part of that agreement, you agreed to pay some sort of early termination fee (“ETF”) if you terminated the contract prior to the expiration of the agreed-upon term. In Minnick v. Clearwire US LLC (Wash., May 3, 2012), the Supreme Court was tasked (by certified question from the Ninth Circuit) with deciding whether that ETF provision is an alternative performance provision (“APP”) or a liquidated damages provision (“LDP”). Why is this important? Well, LDPs are subject to a “penalty” analysis to determine whether they are enforceable, while APPs are not subject to any such review.

Here, the Supreme Court concluded that Clearwire’s ETF was an APP because (1) customers had a “real option” at the time of contracting and (2) the option was of “relatively equal value” when compared to the alternative of fulfilling the rest of the service contract. Continue reading

SCOW: When Is an Overhead Tax Not an Overhead Tax?

The Washington business and occupation (B&O) tax is a slippery little devil. RCW 82.04.500 makes clear that the tax is a tax on the business itself — not a tax on purchasers or customers. Accordingly, the statute provides that the tax “shall constitute part of the operating overhead of” the business. In other words, it’s not a sales tax, which is paid by the customers but which is collected by the business.

In a previous opinion, Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173 (2007), the Supreme Court held that a business was “not permitted to pass the tax through as an added charge to the final purchase price.” Apparently, however, there has been some question about the scope of Nelson‘s holding. How much does disclosure matter? What about negotiation with the customer? Well, the Ninth Circuit Court of Appeals had some questions as well, so they certified a question to the Washington Supreme Court in Peck v. AT&T Mobility (Wash., April 26, 2012):

Under RCW 82.04.500, may a seller recoup its business and occupation taxes where, prior to the sale of a monthly service contract, the seller discloses that in addition to the monthly service fee, it collects a surcharge to cover gross receipts taxes?

The Supreme Court held that, regardless of disclosure, RCW 82.04.500 “prevents a business from recouping the B&O tax as an added charge to its sales price.” Continue reading