--===Washington State Courts - Opinions===--
_Washington State Supreme Court
Opinions: Sandra S. Nelson v.Mcclatchy Newspapers Inc. And Tacoma News, Inc. _
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 62943-9
Title of Case: Sandra S. Nelson
v.
Mcclatchy Newspapers Inc. And Tacoma News, Inc.
File Date: 02/20/97
Oral Argument Date: 06/11/96
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Pierce County;
93-2-06389-5
Honorable Vicki L. Hogan, Judge.
JUSTICES
--------
Authored by Richard B. Sanders
Concurring: Barbara Durham
James M. Dolliver
Charles Z. Smith
Richard P. Guy
Charles W. Johnson
Barbara A. Madsen
Gerry L. Alexander
Philip A. Talmadge
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
William J. Bender
Skellenger Bender Mathias & Bender PS
1301 Fifth Avenue
Suite 3401
Seattle, WA 98101-2605
James E. Lobsenz
Carney Badley Smith & Spellman
701 5th Ave, Ste 2200
Seattle, WA 98104
Paul Chuey
Skellenger Bender Mathias & Bender PS
1301 5th Ave Ste 3401
Seattle, WA 98101
Counsel for Respondent(s)
P. C. De Vore
Davis Wright Tremaine (typists--P. Cameron De Vore)
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
Thomas A. Lemly
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
Gregory J. Kopta
Davis Wright Tremaine
2600 Century Sq
1501 4th Ave
Seattle, WA 98101-1662
Amicus Curiae on behalf of Allied Daily Newspapers
Stephen A. Smith
Preston Thorgrimson Etal
5000 Columbia Ctr
701 5th Ave.
Seattle, WA 98104-7078
Amicus Curiae on behalf of Washington State Labor Council
Robert Stern
1118 18th Ave E
Seattle, WA 98112
Kathleen P. Barnard
Schwerin Burns Campbell & French
Ste 309
2505 3rd Ave
Seattle, WA 98121
Todd Maybrown
Allen & Hansen
Ste 4301 4th Ave Plaza
1001 4th Ave
Seattle, WA 98154
David C. Fathi
Columbia Legal Services
101 Yesler Way Ste 301
Seattle, WA 98104
Amicus Curiae on behalf of National Lawyers Guild (nlg)
Frederick W. Hyde Jr.
Attorney At Law
409 Maynard Ave S
Suite 201
Seattle, WA 98104
Valerie A. Carlson
Attorney At Law
216 First Avenue South
Suite 330
Seattle, WA 98104
Gary C. Huie
100 23rd Ave S
Seattle, WA 98144
Amicus Curiae on behalf of Newspaper Guild International
Kathleen P. Barnard
Schwerin Burns Campbell & French
Ste 309
2505 3rd Ave
Seattle, WA 98121
Todd Maybrown
Allen & Hansen
Ste 4301 4th Ave Plaza
1001 4th Ave
Seattle, WA 98154
David C. Fathi
Columbia Legal Services
101 Yesler Way Ste 301
Seattle, WA 98104
Amicus Curiae on behalf of Newspaper Guild Local 82
Kathleen P. Barnard
Schwerin Burns Campbell & French
Ste 309
2505 3rd Ave
Seattle, WA 98121
Todd Maybrown
Allen & Hansen
Ste 4301 4th Ave Plaza
1001 4th Ave
Seattle, WA 98154
David C. Fathi
Columbia Legal Services
101 Yesler Way Ste 301
Seattle, WA 98104
Amicus Curiae on behalf of Northwest Women's Law Center
Kathleen P. Barnard
Schwerin Burns Campbell & French
Ste 309
2505 3rd Ave
Seattle, WA 98121
Todd Maybrown
Allen & Hansen
Ste 4301 4th Ave Plaza
1001 4th Ave
Seattle, WA 98154
David C. Fathi
Columbia Legal Services
101 Yesler Way Ste 301
Seattle, WA 98104
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SANDRA S. NELSON, )
)
)
Appellant, ) No. 62943-9
)
v. ) En Banc
)
MCCLATCHY NEWSPAPERS, INC., and )
TACOMA NEWS, INC., )
)
Respondents. ) Filed February 20, 1997
SANDERS, J. The issues in this case present two questions.1 The first
is whether the "Fair Campaign Practices Act," RCW 42.17.680(2),
establishing campaign contribution limitations also prohibits an employer
from discriminating against an employee because the employee refuses to
remain politically abstinent? And, second, if RCW 42.17.680(2) does apply
in such situations, does its application violate a newspaper's
constitutionally guaranteed free press right to editorial control of the
paper's content? The concurrence claims this employee lacks standing, a
matter which will also be discussed.
We find that RCW 42.17.680(2) does prohibit this employer from
discriminating against an employee on the basis of the employee's refusal
to remain politically abstinent. However, we conclude the statute cannot
constitutionally apply to McClatchy Newspapers or The News Tribune (TNT)
under the free press clause of the First Amendment to the United States
Constitution.
The trial court's dismissal of Sandra Nelson's statutory and
constitutional causes of action is, therefore, affirmed.
I.
FACTS
Sandra Nelson began working as a reporter for TNT in 1983, three years
before McClatchy Newspapers, Inc., purchased it. When McClatchy acquired
TNT in 1986 it retained Nelson as a reporter. Nelson covered the
"education beat" and focused on Tacoma schools as well as regional and
state educational issues and, by all accounts, did a good job.
A fundamental goal of TNT, as a news publication, is to appear
objective in the eyes of its readers. As part of this effort, TNT
management put forth an ethics code in 1987 regulating activity deemed to
present apparent or actual conflicts of interest. The ethics code defines
conflicts of interest to include all situations in which readers might be
led to believe that the news reporting is biased, including situations in
which reporters participate in high profile political activity. Nelson's
admitted violation of this code of ethics led to her transfer and the
present suit.
Journalistic codes of ethics are common. In fact, most newspapers in
the country have some form of code of conduct to minimize conflicts of
interest. A 1983 study indicates that 75 percent of news organizations
have similar codes in place.2 For example, The Washington Post has a code
nearly identical to TNT's stating in part that newsroom employees must
"`avoid active involvement in any partisan causes politics, community
affairs, social action, demonstrations that could compromise or seem to
compromise our ability to report and edit fairly.'" Jason P. Isralowitz,
The Reporter as Citizen: Newspaper Ethics and Constitutional Values, 141
U. Pa. L. Rev. 221, 222 n.7 (1992) (quoting Benjamin C. Bradlee, Standards
and Ethics, in the Washington Post Deskbook on Style 1, 3 (Thomas W.
Lippman ed., 2d ed. 1989)). Similarly, the Associated Press has a code
containing nearly identical provisions including "Involvement in politics,
demonstrations and social causes that could cause a conflict of interest,
or the appearance of such conflict should be avoided." Clerk's Papers (CP)
at 231-32. The code of ethics of the Society of Professional Journalists
is also similar.
Nelson is a self-professed lesbian who spends much of her off-duty
hours serving as a political activist. She attends political fora,
demonstrations, and classes for political causes including highly visible
support for gay and lesbian rights, feminist issues, and abortion rights.
Nelson is also a member of and organizer for Tacoma Radical Women, a
feminist socialist organization, and the Freedom Socialist Party. Much of
her political activism has been supported by this party and has been in
support of its party platform. McClatchy knew of Nelson's political
activities when it chose to retain her.
In 1987, Nelson was seen by a TNT reporter and photographer as she was
picketing for abortion rights outside a local hospital. TNT management
told her such activity compromised the paper's appearance of objectivity.
Nelson responded she would continue her public political activity anyway.
In 1989, Nelson helped launch a ballot initiative to have an
antidiscrimination ordinance reinstated following its repeal. Throughout
1990 she visibly promoted the initiative by organizing volunteers,
soliciting support from various groups, arranging for community speakers,
organizing rallies, and collecting signatures for the initiative. The
initiative battle remained a major political story throughout the year and
increasingly so as the fall election approached. On August 15, 1990, TNT's
editors informed Nelson that she would be transferred from her position as
education reporter to swing shift copy editor until after the November
election. TNT stated that Nelson's activities violated the ethics code and
raised concern about TNT's appearance of objectivity.
A swing shift copy editor is a nonmanagerial position requiring the
same general qualifications as a reporter. Nelson maintained her salary,
benefits, and seniority and edited a wide variety of local and national
stories. However, she was required to work nights and weekends and was no
longer a beat reporter investigating and writing stories. Nelson's
transfer became permanent when she refused to promise future conformity
with the ethics code.
Nelson remained politically active. For example in 1994 she actively
opposed a ballot initiative which would have prevented municipalities from
extending civil rights to gays and lesbians. Also in 1994 she testified
before the state Legislature on behalf of the "Stonewall Committee" in
support of a gay and lesbian civil rights bill. The story received front
page coverage in TNT and most other state newspapers. TNT was initially
alerted by a legislator who knew Nelson as a TNT employee and contacted TNT
to ask if Nelson was lobbying the Legislature on TNT's behalf. TNT's
editors wrote to Nelson that "We are dismayed and concerned that you have
taken your political activism to a new and larger arena." CP at 405. The
editors also wrote that such activity jeopardized the credibility of TNT in
the eyes of its readers and the Legislature alike. They told Nelson that
their discomfort had nothing to do with the content of her politics as,
indeed, TNT has on several occasions adopted pro-gay positions in its
editorials. TNT concluded by informing Nelson that if her political
activism further compromised the paper's credibility, it would be forced to
"further isolate" her and to "take appropriate disciplinary action." CP
at 405.
Nelson requested TNT to reinstate her as reporter. In October 1993
she wrote to her supervisor requesting her reinstatement and she later
applied for a position as reporter. In January 1995 she sent TNT a letter
asking to be considered for what she asserted was an unannounced opening as
education reporter.3 Since Nelson's transfer, TNT has hired nine reporters
to cover various topics. Nelson alleged that it was made clear that the
positions would remain closed to her so long as she continued her high
profile political activism. TNT responded that Nelson never applied for
any open position; however, for the purpose of this opinion we will assume
the truth of Nelson's allegations.
After unsuccessfully pursuing redress in a federal forum, Nelson filed
suit in Pierce County Superior Court alleging TNT improperly stripped her
of her position as reporter. Nelson alleged TNT: (a) violated RCW
42.17.680(2) of the Fair Campaign Practices Act, which Nelson claims
prohibits employers from discriminating against employees based on their
support of initiatives, political parties or political committees; (b)
violated several provisions of the state constitution including article I,
section 5 (free speech), article I, section 4 (freedom to assemble and
petition government), article I, section 19 (guarantee of free elections),
and article II, section 1 (popular right to initiative); (c) breached her
employment contract because she was transferred without good cause; and (d)
wrongfully transferred her because it is against public policy to forbid
employees from participating in off-duty political activity. The trial
court granted summary judgment to TNT on Nelson's claim under RCW 42.17.680
and on all her constitutional claims. The remaining breach of employment
and wrongful transfer claims survived and are scheduled for trial on
remand. Thus, the issue before this court is the propriety of the trial
court's summary judgment dismissal of Nelson's statutory and constitutional
claims.
II.
DOES RCW 42.17.680(2) APPLY?
Nelson asserts that RCW 42.17.680(2) applies. We agree.
RCW 42.17.680(2) states in full:
No employer or labor organization may discriminate against
an officer or employee in the terms or conditions of employment
for (a) the failure to contribute to, (b) the failure in any way
to support or oppose, or (c) in any way supporting or opposing a
candidate, ballot proposition, political party, or political
committee.
(Emphasis added.)
Nelson asserts the statute is clear on its face and applies in her
case. A fundamental rule of construction is, absent ambiguity, the plain
wording of the statute controls. Anderson v. City of Seattle, 123 Wn.2d
847, 851, 873 P.2d 489 (1994). Thus, the statute prohibits discrimination
based on an employee's "supporting or opposing a candidate, ballot
proposition, political party, or political committee." RCW 42.17.680(2).
The issue is whether an employee who is discriminated against for
refusing to abstain from political involvement fits within the statutory
language of someone removed for "supporting or opposing" a ballot
initiative, political party or committee. There is little outside guidance
on the meaning of the provision in question and there is no case law
interpreting the statute. The original version of the initiative came out
of the state senate as Engrossed Substitute Senate Bill 5864, and the
legislative history of intent is scarce there as well. A staff memo
circulated to the senate committee originally overseeing the bill stated
that, amongst other things, the bill would prohibit employers from
"discriminat{ing} against employees on the basis of their political
activity." Senate Comm. Staff Memorandum, Campaign Contributions &
Expenditures: Highlights of Proposed Sub. S.B. 5864, at 2 (Mar. 5, 1991).
Newspaper articles and editorials4 published during the 1992 election
season uniformly fail to mention this particular provision nor does the
voter's pamphlet in its description of or the statements for and against
the law. In all, the provision now before the court seems to have gone
largely unnoticed.
Nelson urges that the plain language of the statute supports her
position. And, in circumspect, one may also find support for her position
in the subsection preceding the one at issue. Subsection (2)(b) states
that no employer may discriminate against an employee for the "failure in
any way to support or oppose" a candidate, ballot proposition, political
party, or political committee. RCW 42.17.680(2)(b). Subsection (2)(c), at
issue here, states that no employer may discriminate against an employee
for "in any way supporting or opposing a candidate, ballot proposition,
political party, or political committee." RCW 42.17.680(2)(c). Logically,
subsection (2)(b) would apply when the employee fails to adopt and support
the employer's political position, whereas subsection (2)(c) would apply
when the employee refuses to abstain from political activity. It is
difficult to imagine what subsection (2)(c) would mean if not what Nelson
claims. Adopting TNT's reading that the statute does not apply when the
employer merely requires political abstinence is contrary to the text of
subsection (2)(c).5
TNT, on the other hand, asserts that the provision should be read in
context. Nationwide Papers, Inc. v. Northwest Egg Sales, Inc., 69 Wn.2d
72, 76, 416 P.2d 687 (1966) ("Language within a statute must be read in
context with the entire statute and construed in a manner consistent with
the general purposes of the statute.").6 TNT asserts that when read in
context, the provision has a narrower meaning and will apply only when an
employer attempts to strong-arm an employee into adopting its political
position. The trial court agreed with TNT and held the statute applies
only when the employer requires an employee to adopt its political position
and does not apply when the employer merely requires political neutrality
of its employees.
Initiative 134 which contains the provision in question was aimed at
repairing the political process through campaign finance reform.7 The
primary change proposed by the initiative was the imposition of
contribution limits that individuals and entities could give per candidate
per election. The initiative also sought to prohibit contributions from
one candidate's campaign to another, forbid public funding of campaigns,
limit the repayment of loans taken out while campaigning, and prohibit
fundraising by legislators during session. The official ballot title
asked:
Shall campaign contributions be limited; public funding of state
and local campaigns be prohibited; and campaign related
activities be restricted?
1992 Voters Pamphlet, Initiative Measure 134, at 8.
One of the stated purposes of the initiative was to prevent
financially strong organizations from exercising a disproportionate or
controlling influence on elections. RCW 42.17.610(1). In 1993, the
initiative became codified under the heading of Campaign Contribution
Limitations under chapter 42.17 RCW, the public disclosure act, the purpose
of which is to inform the public of campaign and lobbying contributions and
to help ensure, through disclosure, the integrity of government. See
Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 719, 748 P.2d 597
(1988).
TNT argues the statutory provision in question was not intended to
apply as Nelson asserts. Washington already has a labor law statute
forbidding discrimination against an employee on the basis of age, sex,
marital status, race, creed, color, national origin, or physical handicap.
RCW 49.60.180. Nelson's reading, TNT argues, in effect creates an
additional category, that of political activist, but would locate it in the
campaign finance reform law rather than in labor or other civil rights
laws.8 TNT argues if creation of such a broad right was intended, why was
it quietly slipped into campaign finance reform?
But TNT's interpretation does not track the text of the act. When
read in context this law has a clear relation to the rest of the campaign
finance reform act; it is meant to prevent employers from wielding their
might to influence politics and elections. The law is part of campaign
finance, not civil rights or labor law. Taken as a whole, the provision in
question means that employers may not disproportionately influence politics
by forcing their employees to support their position or by attempting to
force political abstinence on politically active employees. The law is
designed to restrict organizations from wielding political influence by
manipulating the political influence of their employees through employment
decisions. Moreover, TNT's reading essentially renders the provision in
question meaningless as RCW 42.17.680(2)(b) already covers the
interpretation urged by TNT. Nisqually Delta Ass'n v. City of DuPont, 95
Wn.2d 563, 568, 627 P.2d 956 (1981) (whenever possible, courts should avoid
a statutory construction which nullifies, voids, or renders meaningless or
superfluous any section or words).
We hold RCW 42.17.680(2) applies to the present case and substantial
evidence supports its application.
We now turn to the constitutional issue which we find dispositive.
III.
DOES RCW 42.17.680(2) UNCONSTITUTIONALLY INFRINGE ON TNT'S RIGHT TO FREEDOM
OF THE PRESS?
We hold that RCW 42.17.680(2) unconstitutionally infringes on TNT's
right to freedom of the press.
TNT asserts that RCW 42.17.680(2) as applied to it violates the First
Amendment to the United States Constitution9 and article I, section 5, of
the state constitution.10 In particular, TNT asserts that the free press
clause of both constitutions guarantees it editorial discretion to control
the content of its publication. TNT further asserts that controlling the
newspaper's credibility is an integral component of this. TNT argues its
conflict of interest policies are designed to control its credibility and
are a reflection of its content. TNT concludes that requiring its
reporters to abide by its no-conflict-of-interest policy is necessary to
uphold its editorial integrity, which TNT asserts is constitutionally
protected. Accordingly, TNT claims that RCW 42.17.680(2) does not apply to
it in this case. On the contrary, Nelson asserts that what TNT's reporters
do on their own time has nothing to do with the content or credibility of
the newspaper and accordingly the free press clauses of the federal and
state constitutions are irrelevant. While the trial court dismissed
Nelson's statutory claim holding the statute inapplicable, it redundantly
ruled in TNT's favor on this point as well, reasoning:
The First Amendment and the Washington Constitution protect
Defendants' editorial discretion. Under the First Amendment and
the Washington Constitution, Defendants have a right to protect
the newspaper's unbiased content, both its facts and as perceived
by its readers, its sources and its advertisers. In order to
protect the newspaper's credibility, Defendants may enforce the
political neutrality of reporters.
CP at 425-29.
We agree with TNT and affirm the trial court on this ground.
The free speech clauses of the federal and state constitutions have
always held a revered position in our society. Laurence Tribe, a
preeminent constitutional law scholar, has characterized free speech as
"the Constitution's most majestic guarantee." Laurence H. Tribe, American
Constitutional Law sec. 12-1, at 785 (2d ed. 1988). Free speech is a
fundamental right on its own as well as a keystone right enabling us to
preserve all other rights. Id. As one federal judge has noted, "Free
speech is the single most important element upon which this nation has
thrived." Guzick v. Drebus, 305 F. Supp. 472, 481 (N.D. Ohio 1969), aff'd,
431 F.2d 594 (6th Cir. 1970), cert. denied, 401 U.S. 948, 91 S. Ct. 941, 28
L. Ed. 2d 231 (1971).
The Supreme Court has observed "the Founders . . . felt that a free
press would advance `truth, science, morality, and arts in general' as well
as responsible government." Curtis Publishing Co. v. Butts, 388 U.S. 130,
147, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) (quoting Letter to the
Inhabitants of Quebec, 1 Journals of the Continental Cong. 108 (1774)).
From the start we have acknowledged that active protection from
governmental abridgment is essential. Upon presenting the Bill of Rights
to Congress in 1789 James Madison declared "the liberty of the press is
expressly declared to be beyond the reach of this government. . . ."
(quoting Hugo L. Black, A Constitutional Faith 46 (1968) (quoting 1 Annals
of Congress 141 (1857) (1789-96))). Madison later explained that we should
err on the side of upholding and protecting the freedom of the press:
Among those principles deemed sacred in America, among those
sacred rights considered as forming the bulwark of their liberty,
which the Government contemplates with awful reverence and would
approach only with the most cautious circumspection, there is no
one of which the importance is more deeply impressed on the
public mind than the liberty of the press. That this liberty is
often carried to excess; that it has sometimes degenerated into
licentiousness, is seen and lamented, but the remedy has not yet
been discovered. Perhaps it is an evil inseparable from the good
with which it is allied; perhaps it is a shoot which cannot be
stripped from the stalk without wounding vitally the plant from
which it is torn. However desirable those measures might be
which might correct without enslaving the press, they have never
yet been devised in America.
Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 51, 91 S. Ct. 1811, 29 L. Ed.
2d 296 (1971) (emphasis in original) (quoting 6 Writings of James Madison,
1790-1802, at 336 (G. Hunt ed. 1906)).
Since the first days of the republic, our courts have recognized the
importance of a free press and have remained vigilant to protect it from
government intrusion. Justice Dolliver wrote "A free press is certainly an
essential and crucial ingredient of a democratic society." Herron v. KING
Broadcasting Co., 109 Wn.2d 514, 527, 746 P.2d 295 (1987) (Dolliver, J.,
concurring specially). Further, of all the media, the written press has
been protected most vehemently. Professor Tribe informs us "{t}he first
amendment guarantee of freedom from government intrusion reigns most
confidently in the realm of the print media . . . ." Laurence H. Tribe,
American Constitutional Law sec. 12-25, at 1003 (2d ed. 1988).
We take note of a national trend to emphasize the First Amendment
protection. The United States Supreme Court has recently set the pace in
stressing the importance of vigorously protecting free speech within our
system.11 One scholar has acknowledged "{t}he contemporary Court is moving
from the formalism and restrictiveness of the Burger Court retrenchment to
a more . . . liberal conception of free speech practice." Keith Werhan,
The Liberalization of Freedom of Speech on a Conservative Court, 80 Iowa L.
Rev. 51, 52 (1994). We also recognize that this trend has arrived at the
state courts as well.12 These principles, concerns, and trends are
absolutely consistent with our decision today.
While TNT claims protection from both the federal and state
constitutional free press clauses, it fails to conduct a Gunwall analysis13
or show why the state provision should be interpreted differently. We
have
repeatedly held that failure to do so will lead us to interpret the state
constitutional clause coextensively with its parallel federal counterpart,
and we will do so here. See State v. Furman, 122 Wn.2d 440, 448, 858 P.2d
1092 (1993).
When addressing whether a governmental regulation or action affecting
the press is violative of its constitutional free press protection, we
begin by noting the two governing polar principles and then consider where
the complained action falls. On one extreme is the general principle that
a newspaper has "no special immunity from the application of general laws"
simply because it is the press. Associated Press v. N.L.R.B., 301 U.S.
103, 132, 57 S. Ct. 650, 81 L. Ed. 953 (1937). On the opposite side is the
principle that the government absolutely may not regulate the content of a
newspaper. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.
Ct. 2831, 41 L. Ed. 2d 730 (1974).
Miami Herald Publishing is the seminal case on the issue. In Miami
Herald the United States Supreme Court held that the state absolutely may
not regulate the content of a newspaper. 418 U.S. at 258. At issue was
the constitutionality of a Florida "right-of-access" statute which forced
newspapers to publish responses of politicians who had been criticized by
the paper. At the heart of Miami Herald is the notion that in order to
uphold the circulation of ideas the editors of a newspaper must be free to
exercise editorial control and discretion. Id. at 258. The court held
that "`{l}iberty of the press is in peril as soon as the government tries
to compel what is to go into a newspaper.'" Id. at 258 n.24 (quoting 2
Zechariah Chafee, Jr., Government and Mass Communications 633 (1947)). The
court concluded because the state law deprived the paper of its editorial
discretion, it was necessarily unconstitutional as applied to the
newspaper.14
Thus, Miami Herald clearly establishes that editorial control is a
necessary component of the free press and a state law infringing thereon
will be unconstitutional as applied.
Following Miami Herald was Passaic Daily News v. N.L.R.B., 736 F.2d
1543 (D.C. Cir. 1984). Passaic held a newspaper could not be
constitutionally required to publish a reporter's column as a remedy for
unlawful termination because it would interfere with the paper's editorial
function. Id. at 1558. If a newspaper cannot be required to publish a
particular reporter's work, how can it be constitutionally required to
employ the individual as a reporter? Perhaps the paper could be ordered to
employ the reporter for noneditorial services, but that is exactly what TNT
is presently doing.
Editorial integrity and credibility are core objectives of editorial
control and thus merit protection under the free press clauses. This
conclusion is illustrated by a well-worded opinion by Chief Justice Burger:
"The power of a privately owned newspaper to advance its own political,
social, and economic views is bounded only by two factors: first, the
acceptance of a sufficient number of readers and hence advertisers to
assure financial success; and, second, the journalistic integrity of its
editors and publishers." Columbia Broadcasting Sys., Inc. v. Democratic
Nat'l Comm., 412 U.S. 94, 117, 93 S. Ct. 2080, 2094, 36 L. Ed. 2d 772
(1973) (Burger, C.J., plurality op.). Our conclusion is also supported by
academic texts showing credibility to be crucial to a paper's ability to
operate. For example, a piece chronicling the development of the print
media indicates that by 1900 "{i}mpartial gathering and reporting of the
news were generally recognized to be the basic obligation of newspapers."
Warren K. Agee et al., Introduction to Mass Communications 57 (7th ed.
1982).
In Newspaper Guild of Greater Philadelphia v. N.L.R.B., 636 F.2d 550,
560 (1980), the circuit court wrote that editorial integrity is to a
newspaper what machinery is to a manufacturer. The court stated that
"protection of the editorial integrity of a newspaper lies at the core of
publishing control." Id. at 560. The court continued: "At least with
respect to most news publications, credibility is central to their ultimate
product and to the conduct of the enterprise." Id. at 560. Accordingly,
the court noted that a newspaper's ability to control its credibility falls
within the sphere of First Amendment protection and laws infringing thereon
must be scrutinized. Id. at 560.
The Newspaper Guild court continued that
In order to preserve {its managerial prerogative to control
its editorial integrity,} a news publication must be free to
establish without interference, reasonable rules designed to
prevent its employees from engaging in activities which may
directly compromise their standing as responsible journalists and
that of the publication for which they work as a medium of
integrity.
Id. at 561 (footnotes omitted).
This is directly on point. The no-conflict-of-interest policy
employed by TNT was expressly designed for the exact purpose of upholding
TNT's credibility. This policy therefore merits protection under the free
press clauses of the state and federal constitutions.
Nelson claims Associated Press v. N.L.R.B., 301 U.S. 103, 57 S. Ct.
650, 81 L. Ed. 953 (1937), supports her position that codes of ethics
regulating high profile employee activity do not go to a newspaper's core
function and hence are not protected under the free press clauses. There
the Associated Press fired one of its editors for attempting to unionize
the work force. Id. at 124-25. Firing the editor violated the National
Labor Relations Act's specific grant to workers to form, join, and
participate in labor unions. Id. at 123. The court, by a five to four
vote with a strong dissent by Justice Sutherland, found the NLRA
constitutional, id. at 132, but also concluded the true motivation for the
firing related to union membership, not editorial prerogative.
The court rested its decision on a finding that unionizing had "no
relation whatever" to Associated Press's news distributing function. Id.
at 133. Thus, Associated Press must be distinguished from this case.
While internally unionizing a small work force may not impinge on a news
publication's credibility and integrity vis-
-vis the outside world, high
profile politicized activities of a reporter arguably do. The Associated
Press case affirmatively supports this view. In particular, the decision
unambiguously noted that it was not commenting on whether Associated Press
could discharge the editor if or when his continued activity led Associated
Press to believe its appearance of impartiality was subverted. Id. at 132.
On the contrary, the Associated Press decision itself noted that Associated
Press could still publish the news as it desired and could still create and
enforce policies of its own choosing. Id. at 133. The court also stated
that Associated Press would be free to discharge the editor or any
editorial employee who fails to comply with the policies it may adopt. Id.
at 133. If a publisher may discharge an employee for failing to comply
with its editorial policies, it should be equally entitled to transfer an
employee to an equal-paying position which has less public exposure.
Associated Press does not hold that freedom of the press may be violated by
any general law but only that general law (the NLRA) did not.
We think this language in Associated Press clearly supports this view
that TNT's actions were within its constitutionally protected sphere of
control of editorial integrity and credibility even though the statute in
question is a general law.
Further, the Associated Press case is limited to the NLRA and union
activity. We are mindful of the context in which the Associated Press case
was decided. Indeed, Associated Press was handed down at the height of
President Roosevelt's New Deal and political attacks on the court. Finding
the NLRA unconstitutional (which four members of the court were prepared to
do) would have represented an unpopular blow to President Roosevelt's
attempts to restructure government and society through national legislation
such as the NLRA. We should not stretch Associated Press beyond limits
carefully crafted as part of the original text to guide its application.
Nelson also points to Hausch v. Donrey of Nevada, Inc., 833 F. Supp.
822 (1993), to support her assertion that TNT's attempt to protect its
editorial integrity and credibility did not fall within the zone of free
press protections. In Hausch the United States District Court for Nevada
held the press is not immune from suit under the antidiscrimination laws of
Title VII of the Civil Rights Act of 1964 simply because it is the press.
Id. at 830. However, the court there noted that the paper had not alleged
that its ability to control the integrity and credibility of the paper had
been affected by the antidiscrimination laws. Id. at 829. Accordingly
Hausch is not on point.
Here, TNT implemented a code of ethics which it designed in good faith
to foster the newspaper's integrity and credibility. Case law
unambiguously allows a news publication to follow a code designed to limit
conflicts of interest which may diminish publication credibility. TNT
adopted such a code. Freedom of the press leaves such decisions to the
press, not the legislature or the courts. The code is facially designed to
uphold the appearance of impartiality. Indeed, the code seems
representative of those in place at 75 percent of our nation's newspapers.15
In fact, as stated earlier, it is nearly identical to those employed by
the Associated Press, The Washington Post, and the Society of Professional
Journalists.
IV.
JURISDICTION AND STANDING
The concurrences of Chief Justice Durham and Justice Dolliver assert
for the first time anywhere, anytime, Nelson's action is statutorily barred
for lack of prior notice to the attorney general.16 However, the meaning
and/or applicability of RCW 42.17.400 is not properly before us. The claim
has neither been raised nor briefed by the parties. I am hesitant to
decide it; although I posit the concurrence has rushed to decide it
wrongly.
This court has never held RCW 42.17.400 applies (much less
exclusively) to an action maintained pursuant to RCW 42.17.680, nor has it
held section .400 is jurisdictional in any action brought under that
chapter, much less every one.
But the chief's concurrence not only assumes RCW 42.17.400 applies
exclusively to every and any action brought to enforce any legal right
referenced in the entire chapter RCW 42.17, it also concludes Nelson's
possible failure to notify the attorney general necessarily strips the
court of "subject matter jurisdiction." Concurrence (Durham, C.J.) at 1.
Were this view correct, no court would ever have jurisdiction to decide any
private action arising under or pertaining to any provision of the entire
chapter absent compliance with section .400. Notwithstanding, there are
many examples to the contrary.17
Subject matter jurisdiction is the "court's power to hear and
determine cases of the general class or category to which proceedings in
question belong." Black's Law Dictionary 1425 (6th ed. 1990). See also
State v. Pritchard, 79 Wn. App. 14, 19-20, 900 P.2d 560 (1995) (subject
matter jurisdiction is the authority to hear and determine the class of
action to which a case belongs, not the authority to grant the relief
requested, or the correctness of the decision), review denied, 128 Wn.2d
1017, 911 P.2d 1342 (1996). The superior court clearly has general
jurisdiction pursuant to Const. art. IV sec. 6 (amend. 87). Were this not
sufficient to hear most everything brought before it, RCW 42.17.400
expressly invokes the same court's jurisdiction to hear cases of the same
general class or category as Nelson's.
We have held the section .400 requirement regarding the attorney
general notification relates to standing, not jurisdiction. Bare v.
Gorton, 84 Wn.2d 380, 382, 526 P.2d 379 (1974) specifically holds RCW
42.17.400 defines standing. ("{P}rivate citizen has filed demand on the
Attorney General to take action against plaintiff for violation of the act
and, in addition, gave notice of his intent to bring a citizen's action
under RCW 42.17.400(4) if the Attorney General fails to proceed. Plaintiff
therefore meets the requirements of standing . . . .") (emphasis added).
Cf. Donald v. City of Vancouver, 43 Wn. App. 880, 886 n.3, 719 P.2d 966
(1986) (attorney general notification is a prerequisite to taxpayer
standing unless such notification would have been useless).
Standing is not jurisdiction. DeWeese v. City of Port Townsend, 39
Wn. App. 369, 372, 693 P.2d 726 (1984) ("standing is a substantive, not
jurisdictional, question") (citing Hoskins v. City of Kirkland, 7 Wn. App.
957, 961, 503 P.2d 1117 (1972)).18 Parties may not raise standing
challenges for the first time on appeal. State v. Grundy, 25 Wn. App. 411,
416, 607 P.2d 1235 (1980) ("By not raising the issue below, the State never
challenged the Grundys to prove their standing and never gave the trial
court an opportunity to rule."). This case presents even less reason to
address standing than Grundy as Grundy concerned a party who at least
argued lack of standing, albeit first on appeal. But here no party has
even done that.
It is inadvisable for an appellate court to address an issue not
considered below and nowhere briefed or argued, particularly an issue of
first impression, as this would be. Herberg v. Swartz, 89 Wn.2d 916, 925,
578 P.2d 17 (1978); see also RAP 12.1(a) ("{T}he appellate court will
decide a case only on the basis of issues set forth by the parties in their
briefs.").
Other jurisdictions estop any consideration of standing at this
juncture. For example, the Illinois Appeals Court held lack of standing is
not jurisdictional, but rather is an affirmative defense which must be
pleaded and proven. People ex rel. Vuagniaux v. City of Edwardsville, 284
Ill. App. 3d 407, 672 N.E.2d 40, 46 (1996) ("It is the defendant's burden
to show that the plaintiffs do not have standing to sue."). Similarly, in
Washington, affirmative defenses must be pleaded or lost. CR 8(c). But no
defect in standing was pleaded here. See Answer of Defendant, CP at 10-17.
The Pennsylvania court found it error for the appellate court to rule on
standing sua sponte because defendant "did not raise and/or preserve that
issue" for appeal. Society Created To Reduce Urban Blight (SCRUB) v.
Zoning Bd. of Adjustment, 682 A.2d 1, 3 (Pa. Commw. Ct. 1996). See also
Statewide Bldg. Maintenance, Inc. v. Pennsylvania Convention Ctr. Auth.,
160 Pa. Commw. 544, 635 A.2d 691, 698 n.13 (1993) (holding that, even
though plaintiff probably lacked standing to sue, the appellate court could
not raise the issue sua sponte because it was not an issue of subject
matter jurisdiction and defendants failed to raise standing in their
preliminary objections).
However, it is unnecessary to consider Nelson's standing because (1)
the meaning or applicability of RCW 42.17.400 is not properly before us as
it was neither raised nor briefed by the parties; and (2) we affirm the
dismissal on independent and dispositive grounds.
V.
CONCLUSION
We recognize Nelson's statutory right to avoid workplace
discrimination based on her politics. Since this right is established by
the statute we need not consider whether it is also established by the
state constitution. However, the First Amendment freedom of the press is
the constitutional minimum regardless of the legal source of government
abridgment. Choosing an editorial staff is a core press function, at least
when that choice is based on editorial considerations. That is the case
here. This statute has been unconstitutionally applied. The trial court's
summary judgment dismissal of statutory claims is affirmed and McClatchy
shall recover its costs on appeal. The case is remanded for further
appropriate proceedings.
WE CONCUR:
1 We need not address whether the state constitutional Declaration of
Rights vests additional rights in Sandra Nelson, having determined her
state law entitlement was trumped by the First Amendment free press clause.
2 Jason P. Isralowitz, The Reporter as Citizen: Newspaper Ethics and
Constitutional Values, 141 U. Pa. L. Rev. 221, 229 (1992).
3 An education reporter was apparently reassigned to political reporting
presumably leaving an opening. TNT denied there was any such opening.
4 TNT editorialized in favor of the initiative. Initiative 134 is Flawed
But Useful, The Morning News Tribune, Oct. 30, 1992, at A10; Instant
Replay: Our Election Choices, The Morning News Tribune, Nov. 1, 1992, at
C4.
5 For further support of her position Nelson points to a senate attempt to
repeal the provision in question. Once the present lawsuit was filed and
the trial court issued its summary judgment ruling the statute came to the
Legislature's attention. The senate passed a bill in 1995 (which was
vetoed) which would have repealed the provision in question. CP at 375
(Engrossed Second Substitute S. Bill 5576, 54th Leg., Reg. Sess., 5
(1995)). Senate staffers interpreted RCW 42.17.680(2)(c), the provision
now in question, to prohibit "employers or labor organizations from
demanding the appearance of political neutrality from their employees."
See CP at 393-95 (Senate Bill Rep. E2SSB 5576). Nelson suggests this
indicates that her reading is the correct one. She states that the
Legislature failed to repeal the prohibition on an employer demanding
political neutrality, and now the court cannot repeal the same by
construing it to not exist. The fact that a legislator or a staffer
interpreted a statute to create rights and obligations several years after
its popular passage should not be viewed as a reflection of legislative
intent. State v. Leek, 26 Wn. App. 651, 657-58, 614 P.2d 209, review
denied, 94 Wn.2d 1022 (1980).
6 The rules of statutory construction apply to initiatives. Seeber v.
Washington State Public Disclosure Comm'n, 96 Wn.2d 135, 139, 634 P.2d 303
(1981).
7 The initiative, I-134, passed by popular vote in November 1992 with a
72 percent margin.
8 Compare Cal. Labor Code 1101 (West 1996), which states: "No employer
shall make, adopt, or enforce any rule, regulation, or policy:
(a) ¦fáorbidding or preventing employees from engaging or participating in
politics . . . ."; and LA. Rev. Stat. Ann. 961 (West 1996), which states:
"no employer having regularly in his employ twenty or more employees shall
make, adopt, or enforce any rule, regulation, or policy forbidding or
preventing any of his employees from engaging or participating in politics,
or from becoming a candidate for public office." Note the explicit
language used and their placement in the antidiscrimination portions of
labor codes.
9 The First Amendment to the United States Constitution provides that
"Congress shall make no law . . . abridging the freedom . . . of the press
. . . ."
10 Const. art. I, 5, of the state constitution states: "Every person may
freely speak, write and publish on all subjects, being responsible for the
abuse of that right."
11 For recent decisions giving great weight to free speech protection, see
Capitol Square Review & Advisory Bd. v. Pinnete, U.S. , 115 S. Ct.
2440, 132 L. Ed. 2d 650 (1995) (Ku Klux Klan erection of a cross on town
square is protected free speech); Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, U.S. , 115 S. Ct. 2338, 132 L. Ed. 2d
487 (1995) (state law requiring parade organizers to allow gay group to
march is an unconstitutional infringement on organizers' free speech);
Rosenberger v. Rector & Visitors of the Univ. of Va., U.S. , 115
S. Ct. 2510, 132 L. Ed. 2d 700 (1995) (state university's refusal to fund
religious publication violative of free speech); Lamb's Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed.
2d 352 (1993) (school district violated church's free speech rights by
refusing church's request to use school facilities for religious oriented
film series on family values and child-rearing); City of Ladue v. Gilleo,
512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994) (invalidating a city
ordinance banning various signs in residential neighborhoods as violative
of free speech); City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) (invalidating city ordinance
prohibiting newsracks on public property); R.A.V. v. City of St. Paul, 505
U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (invalidating St.
Paul's hate speech "Bias-Motivated Crime Ordinance" as violative of free
speech); Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct.
2395, 120 L. Ed. 2d 101 (1992) (invalidating state law allowing officials
discretion over parade permits based on cost of policing); Simon &
Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S.
105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (invalidating New York's "Son
of Sam" law, which prohibited those accused or convicted of a crime from
deriving income generated by works that describe the crime as violative of
free speech).
12 See, e.g., City of Eugene v. Miller, 318 Or. 480, 871 P.2d 454 (1994)
(Oregon Supreme Court invalidating a municipal vending ordinance
prohibiting sale of goods on sidewalk as applied to vendor of joke books as
violative of free speech); also see Miller v. City of Laramie, 880 P.2d 594
(Wyo. 1994) (city ordinance banning littering violative of First Amendment
free speech guarantees when applied to distributor of free newspaper).
13 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).
14 A newspaper is more than a passive receptacle or conduit for news,
comment, and advertising. The choice of material to go into a newspaper,
and the decisions made as to limitations on the size and content of the
paper, and treatment of public issues and public officials whether fair or
unfair constitute the exercise of editorial control and judgment. It has
yet to be demonstrated how governmental regulation of this crucial process
can be exercised consistent with First Amendment guarantees of a free press
as they have evolved to this time.
Miami Herald, 418 U.S. at 258 (footnote omitted).
15 We note that many other employers have codes in place regulating and
limiting off-duty employee conduct. For example in United States Civil
Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 565, 93 S.
Ct. 2880, 37 L. Ed. 2d 796 (1973) the court upheld restrictions on
government employees' political activity reasoning that "it is not only
important that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of representative Government
is not to be eroded to a disastrous extent." We note that the federal
government there did not have the free press protections afforded to TNT
nor any other constitutional rights, yet the Supreme Court still upheld the
code of conduct. For the same result applicable to a state's ability to
restrict political activity of state employees, see Broadrick v. Oklahoma,
413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973) (a state may require
employees to refrain from political activity).
16 Both concurrences assume, without support in the record, Nelson did not
notify the attorney general. But we do not know that because the record is
silent.
17 We note private suits have been brought under various portions of RCW
42.17 absent apparent compliance with RCW 42.17.400. See Amren v. City of
Kalama, Wn.2d , 929 P.2d 389 (1997) (private citizen may bring
private action under RCW 42.17's disclosure provisions); State v. Young,
123 Wn.2d 173, 180, 867 P.2d 593 (1994) ("an individual has a protected
privacy interest in power usage records . . . ¦underá RCW 42.17.314" and
may privately raise a claim thereunder); and Progressive Animal Welfare
Soc'y v. University of Washington, 125 Wn.2d 243, 247, 884 P.2d 592 (1994)
(private citizens group brought action for disclosure of unfunded grant
proposals "pursuant to the public records portion of the public disclosure
act, RCW 42.17").
18 In contrast, federal courts hold that standing is jurisdictional under
Article III of the federal constitution. New York State Club Ass'n. v.
City of New York, 487 U.S. 1, 8 n.2, 108 S. Ct. 2225, 101 L. Ed. 2d 1
(1988) ("the question of standing is necessary in this ¦federalá Court¦;
however,á the special limitations that Article III of the Constitution
imposes on the jurisdiction of the federal courts are not binding on the
state courts").
THE CONCURRENCE:
DOLLIVER, J. (concurring)--I concur in the result only. Ms. Nelson is
barred by RCW 42.17.400 from suing on her own behalf for alleged violations
of the Fair Campaign Practices Act, and therefore this suit is barred. If
it were not for this procedural barrier, however, I would hold the statute
to be applicable to this case and constitutional as applied to the press
here.
The enforcement provisions of the Fair Campaign Practices Act bar
private actions for damages. RCW 42.17.400. A private citizen may sue to
enforce the statute, but only "in the name of the state," and only after
(1) written notification to the attorney general and the prosecuting
attorney; (2) the failure of the attorney general or prosecuting attorney
to act within 45 days; (3) additional notification to the attorney general
and prosecuting attorney that the citizen intends to sue; and (4) further
inaction by the attorney general or prosecuting attorney within 10 days of
receipt of the citizen's second notice. RCW 42.17.400(4) (emphasis added).
Moreover, the enforcement provisions explicitly bar private litigants from
collecting damages for violations of this statute. Any judgment awarded
escheats to the state, less costs and attorney fees. RCW 42.17.400(4).
Assuming, however, that the statute provided Ms. Nelson a remedy, I
must note that I disagree with the majority's holding that the statute
would be unconstitutional as applied to the press here. The First
Amendment does not give a newspaper immunity from general laws absent a
showing of interference with the newspaper's right to determine what to
print.
The majority asserts that this case illustrates a conflict between two
"polar principles" in First Amendment jurisprudence. Majority at 22. The
majority acknowledges, on the one hand, "that a newspaper has 'no special
immunity from the application of general laws' simply because it is the
press." Majority at 22 (quoting Associated Press v. N.L.R.B., 301 U.S.
103, 132, 57 S. Ct. 650, 81 L. Ed. 953 (1937)). On the other hand, the
majority reasons, the government may not regulate the content of a
newspaper. Majority at 22-23 (citing Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241, 258, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974)). I
see no conflict between these principles in this case because there has
been no showing that the government would be regulating content by
enforcing this statute. No one has alleged that Ms. Nelson's reporting was
influenced in any way by her political views. Nor has anyone alleged that
application of the statute would impinge upon the newspaper's exclusive
right to determine what to print.
The First Amendment prohibits the government from regulating what a
newspaper prints. Miami Herald Publishing Co. v. Tornillo, 418 U.S. at
258. The majority cites this principle to support its holding that the
First Amendment also prohibits government regulation of a newspaper's
employment decisions. However, there is a distinction between regulation
of content and regulation of employment decisions, as is illustrated in
Passaic Daily News v. N.L.R.B., 736 F.2d 1543 (D.C. Cir. 1984).
In Passaic Daily News, the District of Columbia Circuit held that the
defendant newspaper had improperly demoted a columnist due to his outside
labor union activities. Passaic Daily News, 736 F.2d at 1555-56. The
court stated that the First Amendment did not insulate the press from
application of a federal statute prohibiting employers from discharging
employees for labor union activity. Yet, at the same time, the court held
that the newspaper could not be forced to print the reporter's weekly
editorial column as a remedy for the illegal demotion. Passaic Daily News,
736 F.2d at 1558. Passaic Daily News makes it clear that there is a
distinction under the First Amendment between government regulation of the
press's labor practices and government regulation of editorial control.
Whereas the former is allowed, the latter is prohibited by the First
Amendment.
Referring to Passaic Daily News, the majority states, "{i}f a
newspaper cannot be required to publish a particular reporter's work, how
can it be constitutionally required to employ the individual as a
reporter?" Majority at 24. Yet, this was precisely what happened in
Passaic Daily News: The newspaper was not required to publish the
reporter's weekly editorial column, but it was also prohibited from
demoting him due to his activities. The reporter was still allowed to
report on local stories; he was just not allowed to write a controversial
editorial column. For the court to have ordered the newspaper to continue
to publish the column would have been to completely usurp its editorial
control. In contrast, the reporter here writes only unbiased stories.
There has been no showing that the newspaper's editorial control would be
threatened by her continued employment as a reporter.
The majority relies upon Newspaper Guild of Greater Philadelphia v.
N.L.R.B., 636 F.2d 550, 560-61 (1980) to buttress its holding that the
First Amendment gives the newspaper the right to adopt internal policies
protecting its credibility. Majority at 25-26. Although Newspaper Guild
addressed the type of policy at issue here, it did so as a means to
concluding that a labor union does not have the right to bargain on all
aspects of a newspaper's ethics code. The court was not deciding whether
an individual employee's statutory and constitutional rights to political
expression were trumped by a newspaper's First Amendment right to enforce
its ethics code. The case thus provides limited precedential value.
In contrast, the Supreme Court considered whether an individual
employee's statutory rights were trumped by a newspaper's First Amendment
rights in Associated Press v. N.L.R.B, 301 U.S. 103, 132, 57 S. Ct. 650, 81
L. Ed. 953 (1937). There the Court held that the newspaper could not claim
First Amendment immunity from provisions of the National Labor Relations
Act protecting an employee's right to organize. Associated Press, 301 U.S.
at 132. The Court noted that there had been no allegation that the
reporter's work was biased, and held that the discharge had been on behalf
of the reporter's outside union activity, which was specifically protected
by federal law. Associated Press, 301 U.S. at 131-32. Just as those
statutory provisions protect outside labor activity, the provisions of the
Fair Campaign Practices Act protect outside political activity. Absent a
showing of bias in Ms. Nelson's work, and a consequent interference with
The News Tribune's right to editorial control from the application of the
statute, the newspaper cannot claim First Amendment immunity here.
Nelson v. McClatchy Newspapers, Inc.
Majority by Sanders, J.
Concurrence by Dolliver, J.
Concurrence by Durham, C.J.
62943-9
DURHAM, C.J. (concurring) -- I agree with Justice Dolliver that a
private cause of action is not cognizable under RCW 42.17.680, and that the
trial court's dismissal of Ms. Nelson's statutory claims, therefore, should
be affirmed. I write separately to emphasize that because the Legislature
has explicitly provided that alleged violations of RCW 42.17 may be
enforced only by or on behalf of the State, we lack subject matter
jurisdiction to consider Ms. Nelson's statutory claims. Therefore, it is
inappropriate to discuss the merits of these claims.
The unavailability of a private right of action under a statute
creates a jurisdictional defect which divests the courts of authority to
reach the merits of the case. In Interstate Prod. Credit Ass'n v. MacHugh,
61 Wn. App. 403, 810 P.2d 535 (1991), the Court of Appeals upheld a trial
court's dismissal of the appellants' claims on the basis that the statute
under which the appellants brought their claims did not create a private
right of action. The court held that the claims were properly dismissed
for lack of jurisdiction. MacHugh, 61 Wn. App. at 408. We have reiterated
this principle as recently as last year in an opinion by Justice Talmadge:
"`In order to acquire complete jurisdiction, so as to be authorized to hear
and determine a cause or proceeding, the court necessarily must have
jurisdiction of the parties thereto and of the subject matter involved.'"
State v. Werner, 129 Wn.2d 485, 493, 918 P.2d 916 (1996) (quoting State ex
rel. New York Cas. Co. v. Superior Court, 31 Wn.2d 834, 839, 199 P.2d 581
(1948)).
This principle is uniformly applied in other jurisdictions. See,
e.g., State ex rel. Goodyear Tire & Rubber Co. v. Tracey, 66 Ohio App. 3d
71, 583 N.E.2d 426, 427 (per curiam) (holding court lacked subject matter
jurisdiction to hear statutory claims where no private right of action),
appeal dismissed per stipulation, 53 Ohio St. 3d 712, 560 N.E.2d 780
(1990); Keizor v. Sand Springs Ry. Co., 861 P.2d 326 (Okla. Ct. App. 1993)
(holding court should have dismissed action for lack of jurisdiction where
no private right of action); Patterson v. Globe Am. Cas. Co., 101 N.M. 541,
685 P.2d 396, 397 (Ct. App. 1984) (affirming trial court's dismissal for
lack of subject matter jurisdiction where no private cause of action).
The majority argues that we must ignore this jurisdictional defect
because the issue was not raised by the parties. However, RAP 2.5(a)
unambiguously provides: "A party or the court may raise at any time the
question of appellate court jurisdiction." "A reviewing court always has
the power to examine basic questions to determine whether it has
jurisdiction to review and resolve the fundamental issues involved." State
ex rel. Hood v. Washington State Personnel Bd., 82 Wn.2d 396, 402, 511 P.2d
52 (1973).
We not only have the power to determine sua sponte whether we have
jurisdiction, but further we have the duty to do so when the issue is not
raised by the parties.
A court is bound to take notice of the limits of its
authority, and it is its right and duty to make a preliminary
examination of its jurisdiction to entertain the cause, of its
own motion, even though the question is not raised by the
pleadings or is not suggested by counsel. If the court finds at
any stage of the proceedings that it is without jurisdiction, it
is its duty to take proper notice of the defect by staying the
proceedings, dismissing, or other appropriate action.
21 C.J.S. Courts sec. 89 (1990) (emphasis added) (footnotes omitted).
This case presents important questions regarding RCW 42.17.680's scope
in relation to free press concerns. Yet, "{t}he rule is well established
that in statutory proceedings the jurisdiction and authority of the courts
are prescribed by the applicable legislative enactments." Passmore v.
Passmore, 57 Wn.2d 762, 765, 359 P.2d 811 (1961) (citing Arneson v.
Arneson, 38 Wn.2d 99, 227 P.2d 1016 (1951)). Therefore, unless and until
these questions are presented pursuant to the explicit enforcement
provisions of RCW 42.17.400, we are without jurisdiction to consider them.
"Jurisdiction over the subject matter of an action is an elementary
prerequisite to the exercise of judicial power. . . . A court lacking such
jurisdiction may do nothing other than enter an order of dismissal." In re
Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976) (citing
Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974)).
Consequently, any discussion of the merits of Ms. Nelson's claims is
inappropriate.
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