The Spokane Record

The proposed Mobius / Spokane Park Department lease includes this provision”

Third- Party Subleases on Lots A, B, & C. Tenant’s initial intent is to develop Lots A, B, and C of the Premises only for parking uses. Landlord’s prior reasonable approval is required if Tenant desires in the future to grant subleases, licenses agreements, concession agreements or the like on such lots for uses other than those directly related to science center purposes (e.g., office or retail uses that are not directly related to or in support of the operation of the science center) (collectively, “Third Party Subleases”).. Except as otherwise provided in Article 9 above, any audited net revenues from such Third Party Subleases shall be shared between the parties as follows: fifteen percent (15%) to Landlord (”Landlord’s Sublease Share”); and the remaining eighty-five percent (85%) to Tenant.

 Section 23.3 Mobius / Park Department Draft Lease.

This may be where Mobius gets to use park land for its non-M0bius purposes.  This is probably, or at least should be, a violation of Wash. Const. Art. VIII, Section 7 — gift of public assets or credit to private party.

Not long ago, the Spokane Park Department acquired more real estate on the north bank of the Spokane River for the expansion of Riverfront Park.

There are discussions taking place regarding the use of this land. A science museum organization, Mobius, wants to use some of the land for a science center. Mobius also wants the Park department to make parkland available to it so that it can construct and operate private office buildings and parking lots. The argument is that they need this gift of land so that for-profit operations can be constructed and so that from the for-profit operations they will be able to pay build and operated their science center.

There is nothing wrong with the Park department leasing land to an entity which will conduct a park purpose or park use on the land. The Mobius science center would be a permissible park land use. The problem has to do with the lease of land for the for-profit operations. This is where things go wrong — two things go wrong.

Number one, the lease presumably for a dollar a year of this for-profit operation would be considered a violation of Washington Constitution Art. VIII, Section 7. This constitutional provision says that city governments are not supposed to use public funds for private purposes and that they are not supposed to make gifts of public funds, or loan public assets for private purposes, or extend credit of the public for private purposes. Here is the exact language:

SECTION 7 CREDIT NOT TO BE LOANED. No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

In the early 1990’s Spokane Transit Authority wanted to create a downtown transit center in a 16 story office building. Its plan was to pre-pay a lease by several millions of dollars it was going to enter into with the developer of a 16 story office building for a transit center on part of the main floor. Litigation was brought By Spokane Research and Defense Fund saying that the transaction could not be entered into because it would be a violation of Washington Constitution Art. VIII, Section 7. The Washington State Attorney General agreed. The AG intervened on the side of Spokane Research and Defense Fund. The developer and STA abandoned the plan.

So, it would seem that use of the land for the private for-profit aspect would be a gift of public funds or a lending of credit in the form of lending the use of these valuable assets of the land for the private for-profit aspect. Despite the Seattle Mariners case what the Spokane Park department seeks to do regarding Mobius would, one would think, still be a violation of Art. VIII, Section 7.

The second reason why the Mobius plan should not be workable (is unworkable) is that the property to be leased for the private office building and private parking area is not going to be used for park purposes. Spokane City Charter Section 48clearly provides that all park property is to be used for park purposes, park uses. Putting the property in question in the hands of Mobius for a profit-making private operation would be in violation of the charter.

The Mobius deal as proposed is illegal.

The 9th Circuit Court of Appeals will hear the appeal of United States District Court Judge Benjamin Settle’s decision enjoin release of the Referendum 71 signatory names.  The case will be heard on October 14, 2009 in Pasadena, CA.  See the Spokesman - Review story.  For much more information about the case and for the pleadings go to the Secretary of State’s website -  R-71 Information.

Putnam v. Wenatchee Valley Medical Center, Washington Supreme Court No. 80888-1, September 17, 2009. Current cite.

Washington requires a certificate of merit with regard to all medical malpractice lawsuits. RCW 7.70.150. The court held that the law was unconstitutional “because it unduly burdens the right of access to courts and violates the separation of powers.”

The court did not reach other issues presented to it. It said,

Because we find that the certificate of merit requirement unduly burdens the right of access to courts and violates the separation of powers, we do not reach Putman’s arguments that the certificate of merit requirement (1) violates the privileges and immunities clause of the Washington State Constitution and the equal protection clause of the United States Constitution, (2) violates the prohibition on special laws in the Washington State Constitution, and (3) violates the due process clause of the United States Constitution.

In reaching its conclusion, the court also took the position that the certificate of merit requirement was “procedural” rather than “substantive.” Thus it concluded the legislature could not interfere with the procedural requirements of the court. “The statute does not address the primary rights of either party; it deals only with the procedures to effectuate those rights.

Therefore, it is a procedural law and will not prevail over the conflicting court rules.4″

Footnote 4 said this:

4 Amicus curiae Washington State Medical Association, et al. encourage us to follow several federal courts sitting in diversity that have held that certificate of merit requirements are substantive rather than procedural. However, those courts used the Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), outcome-determinative test, designed to discourage forum shopping. See, e.g., Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000). Neither the test nor its underlying rationale apply to this court when determining whether a state statute is substantive or procedural for a separation of powers analysis.

Justice Madsen wrote a concurring opinion saying the majority should have limited its opinion to the constitutional issue and should not have gone into discussion about CR 8, CR 11 and CR 81(a).  Find the court rules for Superior Court here.