Port of Tacoma

Ports win dismissal of suit challenging private joint commission meetings

A King County judge Friday dismissed a lawsuit challenging the legality of the ports of Tacoma and Seattle holding about a dozen confidential sessions to plan a marketing and operations alliance.

Superior Court Judge Julia Garratt sided with the two ports on two issues, finding that the open meetings advocate who brought the suit lacked standing to challenge the ports’ decision and that federal law pre-empts the state’s Open Public Meetings Act.

Arthur West, the plaintiff, immediately filed a notice of appeal of the judge’s ruling.

“Oh, hell no,” West, who argued his own case, said after the judge had left the bench. “I’m not not giving up now.”

West is not an attorney, but a citizen who has made a career of campaigning for more transparency in public deliberations.

He initially challenged the meetings under the state’s open meetings statute last fall. He contended that a series of closed meetings held by the two port commissions in joint session violated the state’s Open Meetings Act because the subject of those meetings, forming an alliance to attract more container ship business to the two ports, did not fit the narrow exceptions that the act specified for holding executive sessions.

That law allows such private meetings, for instance, when personnel matters are being discussed, when real estate negotiations are the subject of the meetings, when pending litigation is the focus of those discussion or when matters of national security are at issue.

But the ports’ attorneys contended that because the joint meetings were being held under the authority of federal law, that federal rules apply. Those rules make minutes from those meetings exempt from public disclosure, thus the meetings themselves would similarly could be private, those attorneys argued.

The two ports’ legal teams moved the case from state to federal court last year, but a federal judge late last year returned the case to King County Superior Court saying there was no federal issue at stake.

Friday’s hearing was the first time the two sides had renewed their fight in state court. They made their arguments at the King County Regional Justice Center in Kent.

Tacoma attorney Carolyn Lake, representing the ports, argued that West couldn’t be allowed to bring the suit since he had not shown that he faced potential harm from the meetings being private.

West is an Olympia resident. Since he lives in neither Seattle nor Tacoma port district, Lake told the judge, he was unaffected by the port commissions’ private sessions.

West countered that since the meetings and their minutes were private, he had no way of discovering how he may have been affected by the discussion. He also argued that the Legislature in passing the Open Meetings Act intended it to be interpreted liberally allowing challenges to be brought by a broad spectrum of citizens, not just those specifically the subject of those meetings.

Lake said case law supported the ports’ view that any challenger under the act had to show he or she faced potential consequences by a public body’s decision to meet privately.

Seattle attorney Michele Earle-Hubbard, who specializes in open government cases, said she was surprised by the judge’s ruling.

“That’s disturbing,” she said.

The state law doesn’t require that those challenging a governmental body’s decision to meet in private to be a constituent, she contended.

“I’ve filed many suits under the Open Meetings Act in which the plaintiff did not live in the area governed by the entity we challenged,” she said.

The two ports last year announced they are moving forward with a plan to form an alliance that would market and manage most of the two ports’ big shipping terminals as a single entity. The two ports have been rivals for decades, competing for the business of shipping lines from around the world.

The ports decided to end that rivalry in the face of new competition from emerging ports in Canada and Mexico and on the U.S. East Coast. Those East Coast ports will become more viable rivals to the Puget Sound ports when the Panama Canal is expanded beginning in 2016 to allow larger ships to move from the Pacific to the Atlantic Ocean.

The alliance is expected to begin operations this summer after details are worked out between the two ports on operational details.