Not an official copy.

SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY

THE CITY OF BURIEN, et al., Plaintiffs, v. FREDERICK KIGA, et al., Defendants, and PERMANENT OFFENSE I-722, Intervenor Defendant.	No. 00-2-02068-3 (first Burien case) ORDER CONSOLIDATING cause no. 00-2-02232-5 INTO THIS ACTION, AND RULING ON MOTIONS FOR INTERVENTION, PRELIMINARY INJUNCTION AND CLASS [Clerk's Action Required)
THE CITY OF BAINBRIDGE ISLAND, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants, and PERMANENT OFFENSE I-722, Intervenor Defendant.	No. 00-2-02127-2 (the Bainbridge Island case)
THE CITY OF BURIEN, et al., Plaintiffs, v. KING COUNTY, et al., Defendants, and PERMANENT OFFENSE I-722, Intervenor Defendant.	No. 00-2-02128-1 (sEcond Burien case)
THE CITY OF RICHLAND, et al., Plaintiffs, v. FREDERICK KIGA, et al., Defendants, and PERMANENT OFFENSE I-722, Intervenor Defendant.	No. 00-2-02164-7 (the Richland case)
CITY OF AUBURN, et al., Plaintiffs and THURSTON COUNTY, Intervenor-Plaintiff, and CITY OF DUVALL, et al., Intervenor-Plaintiffs, and GRAYS HARBOR COUNTY PUBLIC HOSPITAL DISTRIOCT NO. 1, Intervenor-Plaintiff, v. KIGA, et al., Defendants, and PERMANENT OFFENSE I-722, entity appearing through counsel	No. 00-2-12232-5 (the Auburn case)

The following three categories of motions came on for hearing before this Court on Friday, December 15, 2000:

1. Three separate motions to intervene as plaintiffs in this Auburn suit. One motion was filed by Thurston County, another by Grays Harbor County Public Hospital District No. 1, and another by the cities of Duvall, Kenmore, Maple Valley, North Bend, Pacific, Renton, and Tukwila and the town of Hunts Point.

2. A motion by Grays Harbor County Public Hospital District No. 1 seeking certification as a plaintiff class action. That motion argued that a plaintiff class would help promote judicial Economy and the prompt resolution of this I-722 litigation, ensure uniformity across this State with respect to the treatment of class members under the I-722 injunction, address Permanent Offense's pleadings which "urge the Court to stop the proliferation of cases and parties", and satisfy the purpose and requirements of Civil Rule 23(b)(2).

3. A motion for a preliminary injunction filed by the original plaintiffs in this Auburn action, which was joined by the above intervening plaintiffs. Those preliminary injunction motions incorporated the legal briefing of the plaintiffs in the consolidated Burienaction. That incorporated briefing asserted that I-722 is unconstitutional on its face because it allegedly violates (1) Article VIII - gift of public funds, (2) Article VII - uniformity clause, (3) Article XI - local self government provisions, (4) Article II/§19/1^st clause - single subject rule, (5) Article II/§19/2^nd clause - subject-in-title rule, and (6) Article 11/§37 -- full disclosure rule.

At the outset, this Court also considered:

4. A request by counsel for Permanent Offense I-722 to consolidate the Auburn suit into the previously consolidated Burienaction.

This Court considered the above motions and request, the pleadings submitted in support of and opposition to those motions, the records and files in the Auburn and Burien actions, and the arguments of counsel for Permanent Offense I-722 and the, parties in the Auburn suit. Having considered the above, this Court issued its rulings concerning consolidation, intervention, class certification, and a preliminary injunction on the record at the December 15, 2000 hearing. The Court enters thiswritten Order confirming those rulings as follows:

With respect to consolidation, this Court grants the request of Permanent Offense I-722. IT IS ACCORDINGLY ORDERED, ADJUDGED, AND DECREED that the lawsuit captioned The City Of Auburn, et al v. Kiga, et al., Thurston County Superior Court cause no. 00-2-02232-5, is hereby consolidated with the four other suits previously consolidated under City Of Burien, et al. V. Kiga, et al., Thurston County Superior Court cause no. 00-2-02068-3. This results in five cases being consolidated in the Burien action under Thurston County Superior Court cause no. 00-202068-3.

With respect to intervention, this Court grants the motions to intervene as plaintiffs filed by Thurston County, by Grays Harbor County Public Hospital District No. 1, and by the cities of Duvall, Kenmore, Maple Valley, North Bend, Pacific, Renton, and Tukwila and the town of Hunts Point. IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED that those movants are now added as intervening plaintiffs in the five cases now consolidated in the Burien action.

With respect to class certification this Court concludes that certification of one or more plaintiff classes is appropriate. This Court further concludes, however, that defining the plaintiff class or classes differently from the class proposed by Grays Harbor County Public Hospital District No. 1 would better serve the interests of promoting judicial Economy and the prompt resolution of this I-722 litigation, of ensuring uniformity across this State with respect to the treatment of this State's subdivisions under the I-722 injunction, of responding in a meaningful way to Permanent Offense's pleadings which "urge the Court to stop the proliferation of cases and parties", and of satisfying the purpose and requirements of Civil Rule 23(b)(2).

This Court concludes that those interests and Rule 23(b)(2) would be better served by certifying one class consisting of counties, and the other class consisting of all municipal entities, governments, and subdivisions that are not counties. As to each of those two re-defined classes, this Court finds that (a) the class is so numerous that joinder of all members in this particularcase is impracticable, (b) the facts concerning the constitutionality or unconstitutionality of I-722 on its face are common to the class, (c) the questions of law regarding the constitutionality or unconstitutionality of I-722 on its face under the six constitutional provisions cited in parties' briefing to date are common to the class,¹ (d) the currently-named plaintiffs' claims against the defendants under those six constitutional provisions are typical of the claims of the class, (e) the currently-named plaintiffs have demonstrated in this case their ability of fairly and adequately protect the interests of the class with respect to those six constitutional provisions, (f) the defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole on the facial validity or invalidity of I-722 under those six constitutional provisions.

This Court further notes that Rule 23(c)(4)(A) provides that "when appropriate, an action may be brought or maintained as a class action with respect to particular issues". This Court concludes that it is appropriate to certify these two classes (counties and non-counties) with respect to the six previously noted constitutional issues concerning the facial validity or invalidity of I-722 namely, whether I-722 is unconstitutional on its face because it allegedly violates (1) Article VIII - gift of public funds, (2) Article VII - uniformity clause, (3) Article XI - local self government provisions, (4) Article II/§19/1^st clause - single subject rule, (5) Article II/§19/2^nd clause - subject in-title rule, and (6) Article II/§37 - full disclosure rule.

This class certification is limited to issues of facial unconstitutionality and does not affect any of the other claims made in this case, including the claims of the City of Seattle pertaining to the application and interpretation of I-722 in regard to Seattle's voter approved levies, or the taxing districts' claims concerning impairment of contracts. To the extent that any class member has a claim that is based on the interpretation I-722 if that Initiative is found to be constitutional (e.g., the City of Seattle's interpretation claims), or upon the application of I-722 if that Initiative is found to be constitutional (e.g., certain cities' or counties' impairment of contract claims), this class certification does not preclude those members from pursuing those interpretation or application claims separately as non-class claims in this consolidated Burien action following final resolution of all class constitutional claims.

The issue of bifurcation is reserved for a written judicial opinion on January 5, 2001. (With. the exception of the City of Seattle, which has already made its objection to bifurcation known, any party who objects to bifurcation shall so advise the Court by letter delivered or telefaxed to this Court no later than Wednesday, December 27, 2001.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this action (the five cases now consolidated under Burien, et al. v. Kiga, et al.) is certified as a class action with respect to the issue of whether I-722 is unconstitutional on its face under the six previously noted constitutional provisions, with the following two plaintiff classes:

(1) A plaintiff class of all municipal entities, governments, and subdivisions in thisState that are not counties. The class representatives of this class shall be the current plaintiffs in this litigation that are municipal entities, governments, and subdivisions of this State which are not counties. Those class representatives shall designate one lead counsel for communications to and from the Court, and the Court will not entertain any application for attorney fees from class counsel based upon this class certification. The number of members in this class (e.g., every single hospital district school district, cemetery district, etc, in the State) is sufficiently large as to make individual, notice impractical, and therefore at this preliminary injunction time, none shall be required,

(2) A plaintiff class consisting of all counties in this State (including their elected officials), The class representatives of this class shall be the current plaintiff parties to this litigation who are counties -- namely, the counties of Clark, King, Kitsap, Pierce, Skamania, Thurston, and Whitman Those class representatives shall designate one lead counsel for communications to and from the Court, and the Court will not entertain any application for attorney fees from class counsel based upon this class certification. Since thesize of this class is sufficiently small to make individual notice practicable, the Thurston County Prosecutor's office (specifically, the civil deputy attending the December 15 hearing, Jane Futterman) is directed to notify each county of this Order, and that this Order requires each county wishing to remain in this class to provide written confirmation of its desire not to be excluded from this class by no later than January 5, 2001. Ms. Futterman is further directed to file the written confirmations provided to her with the Court. Any county not providing that written confirmation by January 5, 2001 shall be excluded from the plaintiff class of counties.

With respect to this Court's preliminary injunction in this litigation, this Court grants the parties' motions for a short term, preliminary injunction enjoining the implementation and enforcement of I-722 until further order of this Court. The plaintiffs and intervenors in the City of Auburn case assert the exactsame legal position against the facial validity of I-722 as the plaintiffs in the Burien-Bainbridge Island-Richland/Pierce County suits with whichthe Auburn suit is now consolidated. Plaintiffs in the Auburn suit will also suffer the same types of imminent and irreparable harms with the implementation and enforcement of I-722 as the plaintiffs in the Burien-Bainbridge Island-Richland/Pierce County actionwith which they are now consolidated. This Court accordingly finds, for the same reasons it did in the Burien-Bainbridge Island-Richland/Pierce County action, that the Auburn suit plaintiffs and intervenors have satisfied the criteria of Tyler Pipe for the issuance of a preliminary injunction,

This Court also concludes that the members of the plaintiff classes are similarly situated to the class representatives with respect to the legal issues of facial invalidity under the previously noted six constitutional provisions and the threat of irreparable harm. This Court therefore extends the injunction in this matter to all members of the two plaintiff classes This Court also finds that the interests of judicial Economy universally invoked by all parties in this litigation (Permanent Offense, the defendant State, the plaintiffs, and the intervenors alike), the common sense fact that subdivisions of the State (such as members of the non-county class) cannot have greater right or authority with respect to enforcing or implementing I-722 than the defendant State itself, and the overriding principle of uniformity with respect to taxation in our State, further support this Court's exercising its authority tomake this injunction binding upon all members of the plaintiff classes certified by this Court's class certification. (Such an injunction, moreover, should eliminate the need for other subdivisions of the State to file or join in any further injunction litigation before the consolidated Burien-Bainbridge Island-Richland/Pierce County-Auburn action is resolved.)

IT IS ACCORDINGLY ORDERED, ADJUDGED, AND DECREED that:

1. Implementation and enforcement of Initiative 722 shall be, and hereby is, enjoined until further order of this Court.

2. This injunction binds tie parties to this case, including all members of the plaintiff classes certified in this Order. This injunction also binds a of the parties' and class members' employees, agents, officers, attorneys, and others acting in active concert or participation with them who receive actual notice of this Order. Each and every one of such persons and entities are accordingly enjoined from implementing or enforcing Initiative 722 until further order of this Court.

DONE IN OPEN COURT this 9^th day of January of 2001.

__________________________________
Christine A. Pomeroy
Thurston County Superior Court Judge

Presented by:

FOSTER PEPPER & SHEFELMAN PLLC

__________________________________
ThomasF. Ahearne, WSBA No. 14844
Attorneys for Plaintiffs in the Auburn suit and the public hospital district intervenors

Approved of as to form and for entry Notice Of Presentation waived

DAVIS WRIGHT TREMAINE, LLP

__________________________________
Michele Radosevich, WSBA No. 24282
Attorneys for Plaintiffs in the Auburn suit

1. As noted earlier, the preliminary injunction motions of the Auburn suit plaintiffs and intervenors incorporated the preliminary injunction briefing of the plaintiffs in the Burien action -which asserted that I-722 is unconstitutional on its face because it allegedly violates(I) Article VII - gift of public funds, (2) Article VII -uniformity clause, (3) Article Xl - local self government provisions, (4) Article II/§19/1^st clause - single subject rule, (5) Article II/§19/2^nd clause subject-in-title rule, and (6) Article II/§37 -full disclosure rule.

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