source: Caselaw Access Project

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text:
    Matthew Ross THOMAS, Appellant, v. Lyle HILLYARD and Hillyard, Anderson & Olsen, P.C., Appellees.
    No. 20170914
    Supreme Court of Utah.
    Filed July 2, 2019
    Troy L. Booher, Beth E. Kennedy, Jeffrey R. Oritt, Salt Lake City, for appellant
    Michael F. Skolnick, Jeremy R. Speckhals, Salt Lake City, for appellees
    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
   CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 Matthew Ross Thomas claims he was convicted of two felonies because of malpractice by his trial counsel, Lyle Hillyard. Following his trial, Mr. Thomas hired new counsel and was able to secure a new trial. He then accepted a plea deal in which he achieved a better result than he had received at trial-replacing two felony convictions with three misdemeanor convictions. We must determine when his malpractice cause of action accrued.

¶ 2 The district court granted summary judgment in favor of Mr. Hillyard, concluding that Mr. Thomas's malpractice action was barred by the statute of limitations. He now appeals. Mr. Hillyard argues that the elements of a legal malpractice claim were all provable at the time the jury first returned its guilty verdict. He asserts that Mr. Thomas's claim for legal malpractice therefore accrued on that date, and the statute of limitations began to run. Because Mr. Thomas filed his claim after the four-year statute of limitations had run, he claims it was untimely. Mr. Thomas, on the other hand, argues that the element of causation could not be proven until he received a more favorable result, which happened when he accepted the plea deal. Alternatively, he asserts that his claim accrued when he was granted a new trial. The date of both of these events would place the filing of Mr. Thomas's malpractice action within the statute of limitations. We conclude that Mr. Thomas's claim accrued at the conclusion of his criminal case-when he pled guilty to three misdemeanors. Because we find that Mr. Thomas's claim was timely filed, we reverse.

Background

¶ 3 Mr. Thomas was charged and convicted of two counts of aggravated sexual abuse. He hired Mr. Hillyard as his attorney. On October 26, 2012, a jury found him guilty of both felony counts. Mr. Thomas contends that Mr. Hillyard's representation at trial was deficient in several respects. Specifically, he argues that Mr. Hillyard failed to object to inadmissible testimony from Mr. Thomas's daughter and her counselor, failed to object to inadmissible other-acts evidence presented in his ex-wife's testimony, failed to request key jury instructions, and failed to object to prejudicial statements in the prosecutor's closing argument.

¶ 4 Mr. Thomas hired new attorneys, and on January 7, 2013, they filed a motion to arrest judgment, claiming ineffective assistance of counsel based on Mr. Hillyard's alleged errors. This motion was granted on May 24, 2013, and Mr. Thomas was granted a new trial. On October 24, 2014, Mr. Thomas pled guilty to three misdemeanor charges and was released from custody.

¶ 5 On May 23, 2017, Mr. Thomas sued Mr. Hillyard for malpractice. The complaint alleged that Mr. Hillyard's representation fell below a reasonable standard of care, proximately causing economic and noneconomic damages. Mr. Hillyard filed a motion for summary judgment, arguing that the malpractice action was time-barred under the four-year statute of limitations applicable to legal malpractice actions. He grounded this motion on a theory that the claim accrued on the date the jury returned a guilty verdict, October 26, 2012.

¶ 6 Mr. Thomas opposed the motion, arguing that the malpractice action did not accrue until he obtained relief from his felony convictions on October 24, 2014. Since he filed his complaint two and a half years after that, he asserted that he filed within the statute of limitations. Alternatively, he claimed that, at the earliest, the action accrued when he was granted a new trial, which happened three years and 364 days prior to his filing, also within the statute of limitations. So either way, he asserts, he was still within the statute of limitations.

¶ 7 The district court granted summary judgment in favor of Mr. Hillyard. It ruled that the malpractice action accrued when Mr. Thomas was convicted on the felony charges. The court concluded that, at the latest, his cause of action accrued when he incurred legal fees for the post-trial motion he filed on January 7, 2013.

¶ 8 Mr. Thomas timely appealed the district court's ruling to this court, and we have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

Standard of Review

¶ 9 A district court's application of a statute of limitations and grant of summary judgment are both questions of law, which we review for correctness. But application of a statute of limitations may also involve "subsidiary factual determination[s,]" which we review "in the light most favorable to the non-moving party."

Analysis

¶ 10 Mr. Thomas argues that his legal malpractice claim did not accrue until he received a result more favorable than he had received at trial-pleading to misdemeanor charges rather than felony charges. Mr. Hillyard, on the other hand, asserts that the claim accrued, at the latest, when Mr. Thomas moved to arrest judgment. We hold that a legal malpractice claim based on alleged malpractice committed in the course of a criminal proceeding does not accrue until the underlying action has concluded and there is no appeal of right available. Additionally, we hold that if a defendant chooses to pursue a claim under the Post-Conviction Remedies Act (PCRA), the statute of limitations will be tolled throughout the pendency of the claim. Under this framework, Mr. Thomas's claim was timely. So we reverse and remand to the district court.

I. A Malpractice Cause of Action Accrues When the Underlying Criminal Action is Final

¶ 11 Under Utah law, a malpractice action must be brought within a four-year limitation period. A statute of limitations "begins to run when the last event necessary to complete the cause of action occurs." The elements of a legal malpractice cause of action based on negligence are "(i) an attorney-client relationship; (ii) a duty of the attorney to the client arising from their relationship; (iii) a breach of that duty; (iv) a causal connection between the breach of duty and the resulting injury to the client; and (v) actual damages." But "the law does not recognize an inchoate wrong." A plaintiff "must wait until some harm manifests itself," so a claim does not accrue until "a plaintiff suffers actual harm or damages."

¶ 12 In the case at hand, the parties disagree as to "the last event necessary to complete the cause of action." Mr. Hillyard argues that a claim accrues as soon as the client knows of the attorney's alleged negligence. Mr. Thomas counters that the element of causation cannot be satisfied, and the malpractice claim cannot accrue, unless and until the client successfully challenges the conviction.

¶ 13 To prove causation, a plaintiff generally must demonstrate that "he or she would have been better off if the attorney's alleged malpractice had never occurred." We have never explicitly articulated the elements for legal malpractice, or the requirements for proving causation, when the underlying case is criminal. Some jurisdictions "require a criminal defendant to obtain post conviction relief, prove actual innocence, or both, before maintaining a legal malpractice action against the former criminal defense attorney." These jurisdictions generally do so upon the ground that "the adjudication of the plaintiff's guilt precludes him from proving proximate cause." We disagree.

¶ 14 This is a question of first impression in this court. But our court of appeals has considered this issue and has not imposed any requirements for a criminal malpractice claim beyond those required in a civil malpractice claim. And we also decline to do so here. Success in a postconviction proceeding or evidence of actual innocence certainly may aid plaintiffs in proving causation or harm. But neither will always be necessary. There may be scenarios in which a plaintiff would not be entitled to postconviction relief but could still demonstrate proximate cause in a legal malpractice action. So while there are obvious differences between civil and criminal settings, none of them suggests that additional burdens should be imposed on criminal defendants who assert malpractice, especially when those burdens may leave some defendants without a remedy. This also maintains uniformity in how we handle malpractice actions. We therefore turn to our existing malpractice caselaw to determine when Mr. Thomas's claim accrued.

¶ 15 Though the accrual of a criminal malpractice claim is a question of first impression, we have outlined when malpractice claims accrue in other contexts. In Clark v. Deloitte & Touche LLP , the Clarks received incorrect advice from their accountant, were audited by the IRS, and appealed the IRS's findings. After they prevailed in their appeal, the Clarks sued their accountant for malpractice. We held that the claim for accounting malpractice accrued when the underlying action was final and no appeal of right was available-when the tax court issued a final decision on appeal. We also stated that "if the Clarks had received erroneous advice from a tax attorney, as opposed to an accountant," the accrual date would have been the same. And in Boyd v. Jones , the Tenth Circuit applied our Deloitte decision to the legal malpractice context as well. Both Deloitte and Boyd emphasized the need to wait until the damages "became sufficiently final for the plaintiffs to know that they could bring a malpractice claim."

¶ 16 Mr. Hillyard notes that both Deloitte and Boyd were decided prior to our decision in Jensen v. Young . In Jensen , we held that a claim for malpractice accrued when an attorney missed a statute of limitations deadline for filing a claim. But our decision in Jensen failed to consider both Deloitte and Boyd , and neither case was briefed to the court. And we view Jensen 's holding as inconsistent with our reasoning in Deloitte .

¶ 17 Today we hold that where there is an ongoing proceeding, the resolution of which informs the fact of malpractice or damages, the claim does not accrue until the conclusion of that proceeding. The underlying case in Jensen was relevant to whether Jensen would actually suffer damages as a result of his attorney's alleged malpractice. Jensen filed a complaint with a number of claims, some of which were past the statute of limitations. The remaining claims proceeded to trial on similar facts, but on alternative theories for relief. Because Jensen's remaining claims were based on alternative theories of recovery, he still could have received his full damages amount, despite the dismissal of the other claims. If he was made whole through his remaining claims, he likely would not be entitled to damages for malpractice. And if he had not prevailed on the remaining claims, then he would no longer have a valid malpractice claim. So applying the Deloitte reasoning, Jensen's malpractice claim should not have accrued until the underlying case was final-once his appeal from the judgment was final.

¶ 18 Because Jensen is inconsistent with Deloitte , we cannot decide this case without overruling either Jensen or Deloitte . The parties have not asked us to overrule Jensen or Deloitte . But where we have two lines of cases that have taken inconsistent and confusing paths, we must choose a path going forward. So we take this opportunity to clarify and reconcile the law. For the reasons we set forth below, we reaffirm the Deloitte reasoning, and we overrule Jensen to the extent it is inconsistent with Deloitte and this opinion.

¶ 19 Here, given our limited caselaw on the issue, the parties each look to other jurisdictions in arguing the proper approach for accrual. Mr. Thomas argues for adoption of a "one-track" approach, in which a "malpractice action accrues when the client satisfies the legal prerequisite for the malpractice claim-successfully proving ineffective assistance of counsel." Mr. Hillyard argues for adoption of a "two-track" approach, in which "a criminal malpractice plaintiff simultaneously pursues either post-conviction or appellate relief while also maintaining a malpractice action." We decline to adopt either approach. Instead, we choose to follow the same approach that we articulated for accounting malpractice in Deloitte . We do so in an effort to maintain uniformity across various malpractice settings, to provide plaintiffs flexibility in pursuing their claims, and to avoid foreclosing avenues of relief for criminal defendants.

¶ 20 We hold that a malpractice claim does not accrue until the underlying direct action has concluded and there is no appeal of right available. Once there is no appeal of right available, the harm is sufficiently final. So the cause of action accrues and the statute of limitations begins to run. Defendants may, of course, decline to bring a direct appeal, in which case they may bring a malpractice action following expiration of the time to file an appeal. But if a defendant chooses to appeal, the statute of limitations will not begin to run until the appeal is final.

¶ 21 In holding that a malpractice plaintiff may file an action without electing to appeal, we recognize that such a plaintiff may face significant practical impediments to success. Such plaintiffs may not be able to prove proximate causation, or may have difficulty establishing damages. In many cases, criminal malpractice defendants (defense attorneys) may be able to demonstrate the plaintiff's failure to mitigate damages. And we are not foreclosing collateral estoppel arguments, especially when the claim is based on a guilty verdict. But ultimately, we leave to malpractice plaintiffs (criminal defendants) the choice of which procedural path to pursue.

II. The Statute of Limitations Will Be Tolled During the Pendency of Claims Under the PCRA

¶ 22 Once criminal defendants have exhausted their appeals of right, they have the additional remedy of filing an action under the PCRA. The statute of limitations for a claim under the PCRA is one year. In certain circumstances, this period may be extended. We hold that the statute of limitations for a malpractice action based on conduct occurring in a criminal case is tolled during the pendency of a PCRA action, provided the PCRA action is filed before the four-year statute of limitations on the malpractice action has expired. But the filing of a PCRA claim may not be used to revive claims for malpractice for which the statute of limitations has expired. Plaintiffs may rely on tolling while the PCRA claim is pending, but they are not precluded from filing their malpractice action during that time and pursuing both claims simultaneously. Again, we leave to plaintiffs the choice of which procedures to pursue.

Conclusion

¶ 23 A cause of action for legal malpractice does not accrue until the underlying action is final and no appeal of right is available. Mr. Thomas's malpractice action did not accrue until the underlying litigation concluded-when he pled to the misdemeanor charges and ended the criminal action. His malpractice action was therefore timely when filed. Accordingly, we reverse the district court's entry of summary judgment and remand for adjudication of Mr. Thomas's legal malpractice claim.

      "When reviewing an order granting summary judgment, the facts and all reasonable inferences that can be drawn from the facts are viewed in a light most favorable to the party opposing the motion." Johnson v. Morton Thiokol, Inc. , 818 P.2d 997, 998 (Utah 1991). We recite the facts accordingly.

      Colosimo v. Roman Catholic Bishop of Salt Lake City , 2007 UT 25, ¶ 11, 156 P.3d 806.

      Id. (internal quotation marks omitted).

      See Utah Code § 78B-2-307(3) ; see also Jensen v. Young , 2010 UT 67, ¶ 15, 245 P.3d 731 ("The limitations period for a legal malpractice claim is four years.").

      Sevy v. Sec. Title Co. of S. Utah , 902 P.2d 629, 634 (Utah 1995) ; see also Ash v. State , 572 P.2d 1374, 1379 (Utah 1977) ("A cause of action arises the moment an action may be maintained to enforce a legal right."); Young Res. Ltd. P'ship v. Promontory Landfill LLC , 2018 UT App 99, ¶ 20, 427 P.3d 457 (stating that "a cause of action accrues when a plaintiff could have first filed and prosecuted an action to successful completion" (internal quotation marks omitted)).

      Christensen & Jensen, P.C. v. Barrett & Daines , 2008 UT 64, ¶ 22, 194 P.3d 931.

      Seale v. Gowans , 923 P.2d 1361, 1364 (Utah 1996).

      Id. ; see also Hunsaker v. State , 870 P.2d 893, 897 (Utah 1993) (stating that plaintiffs must plead actual damages along with breach of duty in order to sustain a cause of action for negligence).

      Sevy , 902 P.2d at 634.

      USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 115, 372 P.3d 629.

      Mr. Hillyard cites to Willey v. Bugden to suggest that the requirements are the same for criminal malpractice as for civil malpractice. 2013 UT App 297, ¶ 23, 318 P.3d 757. Criminal cases are distinct from civil cases in many respects. But most significantly here, criminal defendants are constitutionally entitled to effective representation under the Sixth Amendment to the United States Constitution. Strickland v. Washington , 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). So criminal defendants have the additional post-trial remedy of pursuing claims for ineffective assistance of counsel, a claim not afforded in civil cases. See id. By contrast, civil clients do not have a Sixth Amendment right to effective assistance of counsel, so they cannot rely on claims of ineffective assistance of counsel. Malpractice actions provide the sole remedy for civil clients against their counsel. And in a civil malpractice action, clients prove causation through a "trial-within-a-trial" to demonstrate that they would have been in a better position, absent the attorney's malpractice. Harline v. Barker , 912 P.2d 433, 439-40 (Utah 1996).

      Willey , 2013 UT App 297, ¶ 10 n.5, 318 P.3d 757 (citing Wiley v. Cty. of San Diego , 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983, 985 (1998) ; Canaan v. Bartee , 276 Kan. 116, 72 P.3d 911, 915-16 (2003) ); see also Rosenberg v. Shostak , 405 S.W.3d 8, 14 (Mo. Ct. App. 2013).

      Rosenberg , 405 S.W.3d at 13 ; see also Wiley , 79 Cal.Rptr.2d 672, 966 P.2d at 987 ("Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action ....").

      Willey , 2013 UT App 297, ¶ 10 n.5, 318 P.3d 757 (citations omitted).

      See, e.g. , Krahn v. Kinney , 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989). In Krahn , defense counsel failed to communicate an offer to Krahn in which the prosecutor offered to dismiss the charges against her in return for her testimony against another party. Id. at 1059. Counsel also cancelled Krahn's request for a trial by jury, without her authorization. Id. Krahn entered a guilty plea without knowledge of her counsel's malpractice. Id. at 1060. She later hired counsel who filed a motion to vacate the judgment, which the court denied. Id. ; see also Fischer v. Longest , 99 Md.App. 368, 637 A.2d 517, 522-23 (1994) (finding that defendant could sue defense counsel for legal malpractice, without challenging the ultimate outcome of the criminal proceeding, where he alleged that counsel's lack of diligence led to an extended pretrial detention).

      Clark v. Deloitte & Touche LLP , 2001 UT 90, ¶¶ 4-9, 34 P.3d 209.

      Id. ¶ 10.

      Id. ¶ 25.

      Id. ¶ 31 (citing Pizel v. Zuspann , 247 Kan. 54, 795 P.2d 42, 56 (1990) ; Amfac Distrib. Corp. v. Miller , 138 Ariz. 152, 673 P.2d 792, 793 (1983) (en banc)).

      Boyd v. Jones , 85 F. App'x 77, 81-83 (10th Cir. 2003).

      Id. at 82 (citing Deloitte , 2001 UT 90, ¶¶ 20-21, 34 P.3d 209 ).

      2010 UT 67, 245 P.3d 731.

      Id. ¶ 20.

      Id. ¶¶ 8, 10.

      "In most legal malpractice cases, whether brought under negligence, breach of contract, or breach of fiduciary duty theories, 'a plaintiff's damages ... are limited to the actual amount the plaintiff would have recovered had he been successful in the underlying case.' " Gregory & Swapp, PLLC v. Kranendonk , 2018 UT 36, ¶ 24, 424 P.3d 897 (alteration in original).

      "To prove proximate cause in legal malpractice cases ... the plaintiff must show that absent the attorney's negligence, the underlying suit would have been successful." Harline , 912 P.2d at 439. Because Jensen's claims were all based on various theories of defamation, if the alleged defamatory comments were not capable of defamatory meaning, he could not have prevailed on any of his claims. In that case, he would not have been able to demonstrate proximate cause.

      While we have repeatedly emphasized the importance of stare decisis , and continue to do so, we have also acknowledged that the "presumption against overruling precedent is not equally strong in all cases." Eldridge v. Johndrow , 2015 UT 21, ¶ 22, 345 P.3d 553. In making such a decision, we consider "(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down." Id. In analyzing these factors, we also consider the precedent's "consistency with other legal principles." Id. Here, the Eldridge test is satisfied because Jensen did not analyze Deloitte or Boyd , and it is inconsistent with both cases. And the holding in Jensen is not firmly established in our law. The only case to cite to Jensen 's formulation for accrual since its publication is Moshier v. Fisher , which is presently before this court on certiorari. 2018 UT App 104, 427 P.3d 486, cert. granted , 429 P.3d 460 (Utah Oct. 22, 2018).

      Although the parties use the "one-track" and "two-track" approach labels, it should be noted that there is significant variation in how each jurisdiction handles the specifics of its accrual and tolling framework.

      2001 UT 90, 34 P.3d 209. This approach also largely tracks the approach articulated for accrual in the PCRA. Utah Code § 78B-9-107. And while many jurisdictions follow some variation of either the one- or two-track approach as articulated by the parties, our approach is not novel. See, e.g. , Stephens v. Denison , 64 S.W.3d 297, 300 (Ky. Ct. App. 2001) (holding that client's cause of action for malpractice did not accrue until the appeal in his criminal case was final).

      Utah Code §§ 78B-9-101 to -405. This act is the "sole remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies." Id. § 78B-9-102(1)(a).

      Id. § 78B-9-107(1).

      Id. § 78B-9-107(3).


author: POHLMAN, Judge:

text:
    STATE of Utah, Appellee, v. Michael John CICCOLELLI, Appellant.
    No. 20180039-CA
    Court of Appeals of Utah.
    Filed June 13, 2019
    Andrea J. Garland and Isaac E. McDougall, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶1 Michael John Ciccolelli pleaded guilty to charges relating to his receipt of stolen property, unlawful possession of a firearm, and driving under the influence. He later sought to withdraw his guilty pleas, claiming that they were not knowingly and voluntarily made because he was under the influence of drugs at his plea hearing. The district court denied his motion to withdraw. Ciccolelli appeals, and we affirm.

BACKGROUND

¶2 After receiving a welfare call on January 25, 2017, police officers found Ciccolelli in his car with drug paraphernalia in plain view. The officers searched the vehicle and found a stolen handgun in the center console. Ciccolelli also admitted to the officers that he had recently used marijuana and opioids and had been driving.

¶3 Ciccolelli was charged with theft by receiving stolen property, possession of a firearm by a restricted person, driving under the influence, and possession of drug paraphernalia. Ciccolelli was arrested and booked into jail on June 23, 2017, and a hearing was scheduled for July 3, 2017.

¶4 At the July 3 hearing, Ciccolelli pleaded guilty to the first three charges. In exchange, the State dropped the fourth charge. The district court conducted the following colloquy with Ciccolelli:

The Court: Okay. All right, Mr. Ciccolelli, are you thinking clearly right now?
Ciccolelli: Yes, ma'am.
The Court: Have you been able to go over all of this with [your attorney]?
Ciccolelli: Yes, ma'am.
The Court: You're going to be giving up a lot of rights in this hearing today if you accept this offer because you're still at the early stages. Are you taking any medication or anything that would affect that?
Ciccolelli: No, ma'am.
....
The Court: Are you ready to accept this offer, change your plea and move on towards the sentencing?
Ciccolelli: Yes, Your Honor.

¶5 To finalize the plea agreement, Ciccolelli was invited by the court to sign a statement (the Plea Statement). Under the heading "Defendant's Certification of Voluntariness," the Plea Statement provided:

I [Ciccolelli] am entering this plea of my own free will and choice. ...
I have read this statement, or I have had it read to me by my attorney, and I understand its contents and adopt each statement in it as my own. ...
I was not under the influence of any drugs, medication, or intoxicants which impair my judgment when I decided to plead guilty. I am not presently under the influence of any drug, medication, or intoxicants which would impair my judgment.
I believe myself to be of sound and discerning mind and to be mentally capable of understanding these proceedings and the consequences of my plea. I am free of any mental disease, defect, or impairment that would prevent me from understanding what I am doing or from knowingly, intelligently, and voluntarily entering my plea.

¶6 Not one month later, Ciccolelli moved to withdraw his guilty pleas. In his written motion, he argued that "he was not thinking clearly on July 3, 2017 as he was still under the influence of drugs or alcohol consumed prior to his booking on June 23, 2017." At the plea-withdrawal hearing, Ciccolelli again stated that he "did not understand the thing [his] attorney had been explaining to [him] throughout that whole process due to the large amounts of drugs that [his] mind and body were coming off of." Ciccolelli did not identify what drugs he had consumed or when precisely he took them. He also did not present the court with any evidence to support his claim that his ability to understand the plea agreement was adversely affected by his prior drug use.

¶7 The district court denied the motion. It viewed Ciccolelli's motion to withdraw as being "based on the fact that [he] believe[s] that [he was] still under the influence of drugs 10 days or so-many days after [he] had been arrested-and ... that, therefore, the plea[s] could not have been knowing and voluntary." The court then noted that before it accepted his guilty pleas, it "asked [Ciccolelli] specifically if [he was] under the influence of any alcohol or drugs" and "if [he] understood what was happening." The court stated that "at no time did [Ciccolelli] indicate that [he] did not understand" the plea agreement and that Ciccolelli "signed the statement" after he "went through it carefully, paragraph by paragraph and agreed before [he] entered the plea[s] that every paragraph was true." The court found that what Ciccolelli said during the plea hearing was "more persuasive and more credible" than what he argued in his motion to withdraw. Further, it found that there "were no indications that [Ciccolelli was] under the influence of alcohol or drugs at the time that [he] entered into the plea[s]." Accordingly, the court denied Ciccolelli's motion to withdraw his guilty pleas.

¶8 After ordering a presentence investigation report, the court sentenced Ciccolelli to two concurrent prison terms not to exceed five years. Ciccolelli appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Ciccolelli contends that the district court should have granted his motion to withdraw his guilty pleas because "he demonstrated that he did not enter knowing and voluntary pleas." We will reverse a district court's "ruling on a motion to withdraw a guilty plea only when we are convinced that the court has abused its discretion." State v. Beckstead , 2006 UT 42, ¶ 7, 140 P.3d 1288. And we will disturb the court's underlying findings of fact "only if they are clearly erroneous." Id. ; see also State v. Smith , 2018 UT App 144, ¶ 19, 427 P.3d 1251.

ANALYSIS

¶10 A guilty plea "may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made." Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017). The burden of proof is on the defendant who "must show either that he did not in fact understand the nature of the constitutional protections that he was waiving by pleading guilty, or that he had such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." State v. Alexander , 2012 UT 27, ¶ 23, 279 P.3d 371 (cleaned up).

¶11 Ciccolelli has not met his burden of showing how drugs he allegedly used at least ten days before the plea hearing affected his ability to understand the consequences of pleading guilty. Ciccolelli confirmed at the plea hearing that he was "thinking clearly" and not "taking any medication or anything" that would affect his ability to understand the proceedings. And in the Plea Statement, he represented that he "was not under the influence of any drugs, medication, or intoxicants which would impair [his] judgment" and that he was "of sound and discerning mind." Although "the defendant's own assurances of his capacity are not conclusive, courts have commonly relied on the defendant's own assurance ... that the defendant's mind is clear." Oliver v. State , 2006 UT 60, ¶ 13, 147 P.3d 410 (cleaned up). And we discern no error in the district court's reliance on Ciccolelli's assurances that he was of clear mind when entering his guilty pleas.

¶12 But even if we were to conclude that Ciccolelli's assurances were inconclusive, the use of drugs alone does not render him incompetent. See id. ¶ 7 ("The use of narcotics [or other substances] does not per se render a defendant incompetent to stand trial, nor, presumably, to plead guilty." (cleaned up)). Instead, it is "the drug's effect and not the mere presence of the drug that matters." Id. (emphasis added). Both the Utah Supreme Court and this court have upheld a district court's determination that a plea was knowing and voluntary despite the defendant later claiming to have been under the influence of drugs or alcohol. Id. ¶ 15 (upholding a district court's determination that a defendant who had taken psychotropic drugs was still able to make a knowing and voluntary plea); State v. Beckstead , 2006 UT 42, ¶ 21, 140 P.3d 1288 (upholding a district court's determination that a defendant who had consumed alcohol nonetheless entered a knowing and voluntary plea); State v. Powell , 2015 UT App 250, ¶¶ 7-8, 361 P.3d 143 (upholding a district court's determination that a defendant's guilty pleas were knowing and voluntary despite evidence that the defendant had taken drugs that morning).

¶13 As these and other cases demonstrate, to withdraw a guilty plea a defendant must show how his or her ability to understand the plea agreement was impaired. State v. Smith , 2018 UT App 144, ¶¶ 33, 38, 427 P.3d 1251 (holding that a defendant had not met his burden in demonstrating that his pleas were not knowing and voluntary); State v. Collins , 2015 UT App 214, ¶ 9, 359 P.3d 664 (same); State v. Martinez , 2014 UT App 153, ¶ 3, 330 P.3d 759 (per curiam) (same). General assertions that a defendant did not understand the plea agreement, without supporting evidence, are not sufficient. Powell , 2015 UT App 250, ¶ 8, 361 P.3d 143. And even if a plea colloquy is "far from the model colloquy envisioned by rule 11 [of the Utah Rules of Criminal Procedure]," the burden remains on the defendant to show how his guilty pleas were not knowingly and voluntarily made. Smith , 2018 UT App 144, ¶¶ 34, 37-38, 427 P.3d 1251.

¶14 Here, Ciccolelli provided no evidence of what drugs he used, when he used them, how long they would have stayed in his system, or how they would have affected his competency. He asserts for the first time on appeal that withdrawal from (unspecified) drugs "can last weeks or even months" and lists a wide range of symptoms that may occur "[d]epending on the drug used." However, he has never explained (much less proved) what symptoms he experienced or whether those hypothetical symptoms would be serious enough to affect his ability to understand the nature and consequences of his guilty pleas. That is, Ciccolelli provided no "objective evidence" that he was "actually suffering from a mental impairment as a result of taking" drugs. See Powell , 2015 UT App 250, ¶ 7, 361 P.3d 143. Rather, as in Powell , the only evidence Ciccolelli can identify in the record is his self-serving statements that "he was not thinking clearly" and "did not understand the thing [his] attorney had been explaining." See id. ¶ 8. Unfortunately for Ciccolelli, "[t]his falls far short of carrying his burden of establishing that, during the [plea] hearing, he did not understand either the charges against him or the constitutional protections he was waiving by pleading guilty." See Collins , 2015 UT App 214, ¶ 9, 359 P.3d 664 ; see also Smith , 2018 UT App 144, ¶ 38, 427 P.3d 1251 ; Powell , 2015 UT App 250, ¶ 8, 361 P.3d 143.

CONCLUSION

¶15 For the foregoing reasons, we conclude that the district court did not abuse its discretion when it denied Ciccolelli's motion to withdraw his guilty pleas. The district court's ruling is therefore affirmed.

      The first count was reduced to attempted theft by receiving stolen property.

      Ciccolelli contends that "the [district] court had actual knowledge of [his] potential for impairment" because the court knew that Ciccolelli was a drug user and therefore should have inquired further into his drug use. This argument cuts too broadly. Under Oliver v. State , 2006 UT 60, 147 P.3d 410, a court has a duty to "inquire further" "when the defendant confirms that he has recently taken a drug." Id. ¶ 10 (emphasis added). Here, Ciccolelli affirmed that he was "thinking clearly" and not taking "any medication or anything" that would affect his ability to plead guilty.


author: YU, J. OWENS, J. (dissenting)

text:
    WASHINGTON STATE HOUSING FINANCE COMMISSION, a public body Corporate and politic of the State of Washington, Petitioner, v. NATIONAL HOMEBUYERS FUND, INC., f/k/a Homebuyers Fund, Incorporated, a California nonprofit corporation; Golden State Finance Authority, f/k/a California Home Finance Authority, f/k/a/ California Rural Home Mortgage Finance Authority, a California joint powers authority; Rural County Representatives of California, f/k/a Regional Council of Rural Counties, f/k/a Mountain Counties Water Resources Association, a California nonprofit corporation, Respondents.
    No. 96063-1
    Supreme Court of Washington.
    Argued March 14, 2017 Filed: JULY 25, 2019
    Paul J. Lawrence, Taki V. Flevaris, Alanna Peterson, Shae Blood, Pacifica Law Group LLP, 1191 2nd Avenue, Suite 2000, Seattle, WA 98101-3404, for Petitioner.
    James Wagstaffe, Michael von Loewenfeldt, Wagstaffe, von Loewenfeldt, Busch, 100 Pine Street, Suite 725, San Francisco, CA 94111, Avi Joshua Lipman, Theresa DeMonte, McNaul Ebel Nawrot & Helgren PLLC, 600 University Street, Suite 2700, Seattle, WA 98101-3143, for Respondents.
   YU, J.

¶1 This case asks us to review whether petitioner Washington State Housing Finance Commission (Commission) has standing to challenge respondent National Homebuyers Fund's (NHF) authority to provide down payment assistance to Washington residents in conjunction with federally insured mortgages. The Commission is a Washington public body with delegated authority to provide down payment assistance within the state in a governmental capacity. NHF is a California nonprofit corporation established by several California counties to offer down payment assistance to home buyers nationwide. The Commission alleges that NHF is falsely claiming governmental authority when it provides down payment assistance in Washington, thus its activities impermissibly compete with the Commission's own activities. The Commission brought this suit to challenge NHF's alleged lack of authority to operate in this state.

¶2 The Court of Appeals reversed the trial court's summary judgment in favor of the Commission on the basis that the Commission lacked standing. We reverse and hold that the Commission has standing to bring this action. In doing so, we express no opinion on the merits of the Commission's claims.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶3 The legislature, in response to a serious shortage of affordable housing, established the Commission in 1983 for the purpose of making "additional funds available at affordable rates to help provide housing throughout the state." LAWS OF 1983, ch. 161, § 1; RCW 43.180.010. The Commission accomplishes this mission without using public funds or lending the credit of the state through bond issuances and revenue it generates from its housing programs. One of these programs assists low-income and first-time home buyers qualify for a mortgage by lending them funds for the required down payment. These are low or no interest loans that do not need to be paid back until either the primary mortgage is paid or the home is sold.

¶4 NHF is a California nonprofit public benefit corporation formed by Rural County Representatives of California (RCRC) and Golden State Finance Authority (GSFA). RCRC is a California nonprofit mutual benefit corporation founded by several counties in California to provide services to those counties and advocate on their behalf. GSFA is a joint powers authority created by these same counties to offer home ownership assistance to their residents. NHF was formed for the purpose of providing down payment assistance to low- and moderate-income home buyers throughout the United States. The assistance comes in the form of a gift (which NHF also calls a grant) of up to five percent of the purchase price, which the home buyer does not need to repay.

¶5 Both the Commission and NHF offer their programs in conjunction with primary mortgages that are insured through the Federal Housing Administration's (FHA) mortgage insurance program. Each partners with participating lenders that provide the primary mortgage. These insured loans are then purchased, bundled into mortgage backed securities, and sold for a profit on the open market. The Commission reinvests these proceeds into its housing programs that benefit Washington residents. NHF also uses a portion of its proceeds to expand its housing programs nationwide and distributes excess funds to RCRC to benefit its member counties.

¶6 The FHA, a part of the United States Department of Housing and Urban Development (HUD), promotes home ownership for those who may not qualify for a conventional mortgage by protecting lenders against losses in the event the borrower defaults on the loan. These loans are made by FHA approved lenders, who must ensure the loans comply with detailed underwriting guidelines published by HUD. One such requirement is that the home buyer pay a minimum 3.5 percent down payment. See 12 U.S.C. § 1709(b)(9)(A).

¶7 FHA restricts where the funds for this minimum down payment can come from. Borrowers may receive gifts from certain sources, such as family members, charitable organizations, and government housing programs. But no part of the minimum down payment can come from a "person or entity that financially benefits from the transaction." 12 U.S.C. § 1709(b)(9)(C)(i). This restriction does not apply to gifts or secondary loans made by a government entity acting in its governmental capacity within its jurisdiction. Federal Housing Administration: Prohibited Sources of Minimum Cash Investment Under the National Housing Act-Interpretive Rule, 77 Fed. Reg. 72,219, 72,220 (Dec. 5, 2012).

¶8 These requirements are at the center of the dispute between the parties. The Commission is an "instrumentality of the state exercising essential government functions." RCW 43.180.040(1). The legislature has authorized the Commission to "secure to itself and the people of the state the benefits" of federal housing programs by making loans for down payment assistance. RCW 43.180.050(1)(d)-(e). The Commission alleges that NHF is falsely asserting the same governmental authority in Washington by providing funds that only authorized government entities can provide and marketing itself as governmental.

¶9 NHF disputes these allegations. It asserts that while it meets HUD's definition of a government entity (because it is exempt from federal taxation pursuant to section 115 of the Internal Revenue Code ), it is acting in a proprietary, rather than governmental, capacity when it gifts funds to borrowers in Washington. In NHF's view, it is not an "entity that financially benefits from the transaction" within the meaning of 12 U.S.C. § 1709(b)(9)(C) because it receives revenue only from the sale of mortgage backed securities, not from the individual loan transactions. Consequently, it does not need to invoke the exception for government entities acting in their governmental capacity.

¶10 The Commission filed this lawsuit in 2015, arguing that NHF was unlawfully invoking governmental authority in this state and interfering with the Commission's mission and programs. The Commission sought a declaratory judgment that NHF's ongoing activities in Washington are unauthorized and may not continue. The Commission also sought an injunction prohibiting NHF from any further provision of homeownership financing services in Washington.

¶11 The parties filed cross motions for summary judgment based on these arguments, both of which were denied. On reconsideration, the trial court granted the Commission's request for declaratory relief and declared that NHF's "housing activities in the State of Washington are prohibited by law." Clerk's Papers (CP) at 1287 (footnote omitted).

¶12 NHF appealed this decision and claimed that the Commission lacked standing to bring the lawsuit. The Court of Appeals held that the Commission lacked standing because it did not show that it was within the zone of interests that a statute was intended to protect and it had not demonstrated sufficient economic injury. The Court of Appeals did not reach the other issues and, instead, reversed and remanded with directions to dismiss. Wash. State Hous. Fin. Comm'n v. Nat'l Homebuyers Fund, Inc., No. 76510-8-1, 2018 WL 2949490, slip op. at 10 (Wash. Ct. App. June 11, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/765108.pdf. The Commission petitioned for review, which we granted.

ISSUE

¶13 Whether the Commission has standing to bring this declaratory judgment action.

ANALYSIS

¶14 Standing generally refers to a particular party's right to bring a legal claim. When declaratory relief is sought, the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, provides that "[a] person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder." RCW 7.24.020. We utilize the common law doctrine of standing to clarify the boundaries of this broad statutory right. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 802, 83 P.3d 419 (2004). Standing is a question of law that we review de novo. City of Snoqualmie v. Constantine, 187 Wash.2d 289, 296, 386 P.3d 279 (2016).

¶15 We have established a two part standing test in order to establish that a party's "rights, status or other legal relations are affected by a statute." RCW 7.24.020 ; Five Corners Family Farmers v. State, 173 Wash.2d 296, 302, 268 P.3d 892 (2011). First, we determine "whether the interest sought to be protected is ' "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." ' " Grant County, 150 Wash.2d at 802, 83 P.3d 419 (quoting Save a Valuable Env't v. City of Bothell, 89 Wash.2d 862, 866, 576 P.2d 401 (1978) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152-53, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) )). If so, we then determine "whether the challenged action has caused ' "injury in fact," ' economic or otherwise, to the party seeking standing." Id. (quoting Save a Valuable Env't, 89 Wash.2d at 866, 576 P.2d 401 ). A party seeking standing must satisfy both prongs of the test. Branson v. Port of Seattle, 152 Wash.2d 862, 876, 101 P.3d 67 (2004).

¶16 The UDJA is to be "liberally construed and administered." RCW 7.24.120. Thus standing is not intended to be a particularly high bar. Instead, the doctrine serves to prevent a litigant from raising another's legal right.

Grant County, 150 Wash.2d at 802, 83 P.3d 419. But even when a party does not meet the requirements of our two part test, we sometimes relax these requirements when a matter of substantial public importance would otherwise evade review. Id. at 803, 83 P.3d 419.

¶17 The Court of Appeals held that the Commission failed to satisfy either part of the standing test. We disagree. The statute that authorizes the Commission to exercise governmental authority also confers an interest against interference from unauthorized actors that purport to exercise similar governmental authority. The Commission has also alleged injury related to that interest sufficient for standing. Since the Commission satisfies our standard two part test for standing, there is no need to resort to the more liberal approach to standing we reserve for matters of substantial public importance. However, such an approach would be justified in this case.

A. The interest the Commission seeks to protect is arguably within the zone of interests of the Commission's enabling statute

¶18 To satisfy the first part of the standing test, the Commission must identify the interest it is seeking to protect and show that the interest is arguably within the zone of interests protected or regulated by a particular statute. Id. at 802, 83 P.3d 419. The Commission argues that the statute that authorizes it to exercise governmental authority when it participates in the FHA mortgage insurance program implicitly prohibits others from acting in the same governmental capacity in Washington without similar authorization. We agree that the Commission's interest is arguably within the zone of interests protected by its enabling statute.

¶19 Our case law establishes that an actor authorized by the state to participate in a restricted area has standing to enjoin those that lack similar authorization from competing in that area. See Day v. Inland Empire Optical, Inc., 76 Wash.2d 407, 416-17, 456 P.2d 1011 (1969) ; Puget Sound Traction, Light & Power Co. v . Grassmeyer, 102 Wash. 482, 489-90, 173 P. 504 (1918). And we have allowed authorized government entities to bring suit against competing government entities to establish the boundaries of each party's authority. See Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No. 1, 177 Wash.2d 718, 305 P.3d 1079 (2013) ; Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wash.2d 319, 382 P.2d 639 (1963). Taken together, these cases support the proposition that a party that has been delegated the authority to act in a governmental capacity in a particular area has an interest against interference from others who purport to exercise similar governmental authority without authorization.

¶20 Day involved a dispute between licensed ophthalmologists related to a statute that prohibited doctors from receiving any kind of compensation for referrals. 76 Wash.2d at 409, 456 P.2d 1011. Plaintiffs sought to enjoin certain fellow ophthalmologists from practicing medicine while simultaneously operating a prescription optical business, claiming that the profits earned from referring their own patients to the optical business violated the statute. Id. In addressing standing, we reaffirmed our precedent holding that members of a licensed profession have a legal and equitable right to seek injunctive relief against competitors operating without a license. Id. at 417, 456 P.2d 1011 ; see also Grassmeyer, 102 Wash. at 490, 173 P. 504 (holding that authorized streetcar operator entitled to injunctive relief against unauthorized competitor).

¶21 Similarly, we have allowed municipal corporations to challenge unauthorized competition within their geographic territories from other government entities. In Alderwood, we were presented the question of "whether a municipal water district of this state can directly furnish water to the inhabitants of an area located outside the boundaries of such district but within the boundaries of another water district." 62 Wash.2d at 320, 382 P.2d 639. Both water districts were created pursuant to Title 57 RCW, and both were subject to a statute that stated "a water district may provide water services to property owners outside the limits of the water district." Id. (citing former RCW 57.08.045 (1953)). We interpreted the statute to mean that a water district may provide services outside its territory only to areas not within the territory of another district. Id. at 323, 382 P.2d 639. While standing was not at issue in the case, Alderwood clearly stands for the proposition that a government entity granted authority to operate in a particular space has an interest against competition from others that lack the same authority. See also Skagit County, 177 Wash.2d at 723-30, 305 P.3d 1079 (applying Alderwood in the context of public hospital districts).

¶22 These same principles apply here. The legislature has delegated authority to the Commission to perform an essential governmental function by participating in the FHA mortgage insurance program in a governmental capacity. RCW 43.180.050(1)(e). As such, the Commission has an interest in preventing unauthorized actors from asserting similar authority.

¶23 Even when a party has a demonstrated interest at stake, it must still show that the interest is arguably within the zone of interests regulated or protected by a particular statute. Grant County, 150 Wash.2d at 802, 83 P.3d 419 ; To-Ro Trade Shows v. Collins, 144 Wash.2d 403, 414, 27 P.3d 1149 (2001). In Day and Grassmeyer, the statutes that authorized the parties to act in their respective areas also specifically prohibited others from doing so without authorization. Thus, the interest against unauthorized competition was clearly within the zone of interests "regulated or protected" by the statutes. Since the Commission's enabling act, chapter 43.180 RCW, does not specifically contain a similar prohibition, we must determine if one is nonetheless implied.

¶24 To ascertain whether a party's interests are arguably within the zone regulated or protected by the statute in question, we look to the statute's purpose and operation. Five Corners, 173 Wash.2d at 304-05, 268 P.3d 892. The purpose of chapter 43.180 RCW is to authorize the Commission to perform a "recognized governmental function" by acting "as a financial conduit which, without using public funds or lending the credit of the state or local government, can issue nonrecourse revenue bonds and participate in federal, state, and local housing programs and thereby make additional funds available at affordable rates to help provide housing throughout the state." RCW 43.180.010 ; see also RCW 43.180.040(1) ("The commission is an instrumentality of the state exercising essential government functions."). In furtherance of this purpose, the Commission is specifically authorized to "[p]articipate fully in federal and other governmental programs ... to secure to itself and the people of the state the benefits of those programs and to meet their requirements." RCW 43.180.050(l)(e) (emphasis added). Thus, the statute operates to create a self-funded entity with the delegated authority to act on behalf of the state. It is axiomatic that an entity cannot exercise the authority of the state without authorization to do so. Thus, the Commission's interest against interference from competitors purporting to exercise such authority without authorization is implicit within its enabling act.

¶25 As an authorized actor in a restricted area, the Commission has an interest in excluding unauthorized actors from that space. That interest is within the zone of interests of the statute that grants the authority. Thus the Commission has satisfied the zone of interests test.

B. The Commission has alleged sufficient injury for standing

¶26 The second part of the standing test asks whether the challenged action has caused injury in fact, economic or otherwise, to the party seeking standing. Grant County, 150 Wash.2d at 802, 83 P.3d 419. The Court of Appeals held that the Commission failed to show injury in fact because it did not provide specific evidence of economic loss. Wash. State Hous. Fin. Comm'n, No. 76510-8-1, slip op. at 10. This application of the injury in fact test is overly strict.

¶27 The injury in fact part of the standing test precludes those whose injury is speculative or abstract, rather than actual, from bringing an action. Grant County, 150 Wash.2d at 802, 83 P.3d 419. Our cases analyzing this part of the test have looked to the type of injury alleged rather than proof of the extent of that injury. For example, in a challenge to a statute that authorized a particular method of annexing land to a city, the fact that landowners would face a different tax rate if their land were annexed was sufficient injury for standing. Id. at 802-03, 83 P.3d 419. Even an inference of noneconomic injury is enough to establish injury for purposes of standing. Thus a special interest group satisfied the injury in fact test when its goals of preventing substance abuse could reasonably be affected by an initiative restructuring the state's liquor regulations. Wash. Ass'n for Substance Abuse & Violence Prevention v. State, 174 Wash.2d 642, 653, 278 P.3d 632 (2012).

¶28 The Commission alleges actual rather than speculative or abstract injury. First, the Commission complains that NHF's operations in Washington have diverted funds from its programs. In 2014 and 2015, NHF made grants in excess of $31.6 million to provide down payment assistance for loans totaling over $688 million to Washington residents. The record shows that when NHF suspended its program in Washington in 2016, some lenders switched to the Commission's programs in direct response. CP at 680-86. While the record does not show exactly how much revenue the Commission may have lost due to NHF's activities, the evidence is sufficient to support an inference that the Commission has suffered at least some economic injury.

¶29 The Commission also alleges that NHF has caused confusion among borrowers and lenders regarding NHF's status and relationship to the Commission. When NHF began offering its program in Washington, commission staff fielded numerous inquiries from lenders who thought that NHF was a commission program or that NHF had partnered with the Commission. CP at 388-89, 415. When an organization's constituency is confused, its reputation suffers. Thus the Commission had to either expend effort to clear up the confusion caused by NHF's activities or face diminished goodwill from those it serves. Either way, the Commission is affected. In an open market, responding to disruptions and confusion caused by competitors is part and parcel of doing business. There is no actionable injury because there is no interest against competition. Here, on the other hand, the Commission asserts an interest as an authorized participant in a restricted area in being free from unauthorized competition. And confusion caused by an unauthorized actor is an injury related to that interest.

¶30 The Commission satisfies the injury in fact prong of the standing test. The record supports an inference of economic harm from diverted revenues and noneconomic harm resulting from confusion among borrowers and lenders after NHF's entry into Washington.

C. This case raises issues of substantial public importance

¶31 Our conclusion that the Commission has standing is supported by the public importance of the issues raised. On occasion, this court has taken a ' "less rigid and more liberal" ' approach to standing when necessary to ensure that an issue of substantial public importance does not escape review. Grant County, 150 Wash.2d at 803, 83 P.3d 419 (quoting Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wash.2d 94, 96, 459 P.2d 633 (1969) ). An issue is of substantial public importance when it "immediately affects substantial segments of the population and its outcome will have a direct bearing on the commerce, finance, labor, industry or agriculture generally." Wash. Nat. Gas , 77 Wash. 2d at 96, 459 P.2d 633.

¶32 We have used this approach to find standing when it was unclear whether a party had satisfied our standard two part test. For example, in Constantine, the city challenged the constitutionality of a statute that exempted certain tribal lands from property tax so long as the tribes negotiated a payment to the city in lieu of taxes for public services provided to the property. 187 Wash.2d at 291-92, 386 P.3d 279. Applying our two part standing test, it was clear that the city had suffered injury from the loss of tax property revenue, but it was "a closer call whether the city's interests [were] within the zone of interests regulated by the challenged statute." Id. at 296, 386 P.3d 279. We resolved the "close call" in favor of finding standing because the question of whether payments in lieu of taxes were constitutional would impact Indian tribes across the state and would have implications for our tax system in general. Id. at 297, 386 P.3d 279 ; see also Wash. Nat. Gas, 77 Wash.2d at 96, 459 P.2d 633 ("uncertain and nebulous" injury combined with public importance of issue sufficient for standing).

¶33 We have already determined that the Commission has standing to bring this lawsuit pursuant to our standard test. But even if the Commission had fallen short of the requirements for either the zone of interests or injury in fact prongs of the test, the public importance of the issues raised would militate in favor of finding standing.

¶34 "Decent housing for the people of our state is a most important public concern." RCW 43.180.010. When the Commission was established, "a significant portion of the state's population was inadequately housed." Wash. State Hous. Fin. Comm'n v. O'Brien, 100 Wash.2d 491, 496, 671 P.2d 247 (1983). A lack of affordable housing threatened a "downward spiral effect on the state's economy," and it was apparent that the private sector had been unable to correct the housing scarcity. Id. at 493, 671 P.2d 247. In response, the legislature created the Commission to perform a "recognized governmental function" to help make affordable housing available to more people throughout the state. RCW 43.180.010. As discussed above, the Commission is self funded and relies on the revenue it generates from participating in the FHA mortgage insurance program. Thus, impermissible interference with the Commission's ability to generate revenue through the mortgage insurance program would implicate the affordable housing and economic concerns the Commission was created to address. Had we found that either the zone of interests or the injury in fact question was a "close call," we still would have found that the Commission has standing due to the public importance of the issues in this case.

CONCLUSION

¶35 We hold that the Commission has standing pursuant to the UDJA. The Commission's asserted interest against unauthorized competition is within the zone of interests of chapter 43.180 RCW, and the Commission has shown injury in fact related to that interest. Whether NHF 's activities in Washington are of the type that would require authorization from the legislature is a separate question that goes to the merits of the Commission's claim. We express no opinion on that issue. We therefore reverse and remand to the Court of Appeals for consideration of the remaining issues on appeal. RAP 13.7(b).

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Stephens, J.

Wiggins, J.

González, J.

OWENS, J. (dissenting)

¶36 The Washington State Housing Finance Commission (Commission) sought a declaratory judgment and injunction against the National Homebuyers Fund (NHF) barring NHF from continuing to provide down payment assistance in Washington. The Commission claims that it has standing under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, arguing that its interest in prohibiting NHF from engaging in such activities in Washington is within the zone of interests regulated by the Commission's enabling act, chapter 43.180 RCW. I disagree. Because chapter 43.180 RCW does not exclude other entities, governmental or otherwise, from providing down payment assistance in Washington, and because the Commission's interest in so excluding is not one of substantial public importance, I would hold that the Commission fails to establish standing.

¶37 To establish standing, the Commission must demonstrate, in part, that the interest it seeks to protect is " 'arguably within the zone of interests to be protected or regulated by the statute.' " Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake , 150 Wash.2d 791, 802, 83 P.3d 419 (2004) (internal quotation marks omitted) (quoting Save a Valuable Env't v. City of Bothell, 89 Wash.2d 862, 866, 576 P.2d 401 (1978) ). However, the majority's general proposition that all state-authorized entities are entitled to a presumption of standing as against all entities not expressly authorized is inaccurate and overbroad. This case is distinguishable from Day v. Inland Empire Optical, Inc., 76 Wash.2d 407, 456 P.2d 1011 (1969), and Puget Sound Traction, Light & Power Co. v . Grassmeyer, 102 Wash. 482, 173 P. 504 (1918), on which the majority relies. In both of those cases, the conduct at issue was expressly declared unlawful by positive laws (a state statute and a municipal ordinance, respectively). The interests that the plaintiffs in Day and Grassmeyer sought to protect were thus clearly within the zones of interests regulated by those laws.

¶38 Here, in contrast, chapter 43.180 RCW does not expressly declare it unlawful for entities other than the Commission to provide down payment assistance. The Commission argues that chapter 43.180 RCW implicitly prohibits other entities from doing so under the color of governmental authority. However, the plain language of RCW 43.180.010 -which states that the Commission was established in order to "make additional funds available ... to help provide housing throughout the state"-implies that the Commission's role is intended to be supplemental rather than exclusive. (Emphasis added.) In fact, the Commission identified in an interrogatory more than 25 entities aside from itself that provide down payment assistance in Washington, including numerous municipalities and government agencies.

¶39 Furthermore, chapter 43.180 RCW contains no provision protecting the Commission's geographic territory. Unlike Alderwood Water District v. Pope & Talbot, Inc., 62 Wash.2d 319, 382 P.2d 639 (1963), and Skagit County Public Hospital District No. 304 v. Skagit County Public Hospital District No. 1, 177 Wash.2d 718, 305 P.3d 1079 (2013), here, chapter 43.180 RCW does not prohibit other entities from participating in an activity within a specified territory.

¶40 While Alderwood and Skagit County reference a "general rule" against municipal corporations performing "the same functions at the same time in the same territory," Skagit County, 177 Wash.2d at 726, 305 P.3d 1079 ; Alderwood, 62 Wash.2d at 321, 382 P.2d 639, this court acknowledged in Alderwood that "this so-called general rule has been virtually emasculated by the case law of this state." 62 Wash.2d at 321, 382 P.2d 639. Nonetheless, insofar as the general rule "continues to serve as a touchstone in the sense that it expresses a public policy against duplication of public functions, ... [it] should alert courts ... to the necessity of closely examining in toto statutory provisions conferring authority upon the potentially competing municipal corporations." Id.

¶41 Examining closely the statute conferring authority upon the Commission as an "instrumentality of the state," there is no plain indication that the legislature intended the Commission to be the sole governmental entity that may offer down payment assistance in Washington. RCW 43.180.040(1). Rather, the Commission exists to augment funding for state residents who could not otherwise afford to buy homes. Ostensibly, more funding, rather than less, would better achieve that goal.

¶42 Viewing chapter 43.180 RCW in toto, I conclude that it does not contemplate the exclusion of other governmental entities that seek to give money to low-income prospective homeowners. As such, I would hold that the Commission cannot establish standing because excluding NHF from providing down payment assistance is not ' "within the zone of interests to be protected or regulated by the statute.' " Grant County, 150 Wash.2d at 802, 83 P.3d 419 (internal quotation marks omitted) (quoting Save a Valuable Env't, 89 Wash.2d at 866, 576 P.2d 401 ).

¶43 I further disagree that the instant issue is of sufficient public importance to militate in favor of standing despite that the Commission's interests fall outside the chapter 43.180 RCW's zone of interests. See Grant County, 150 Wash.2d at 803, 83 P.3d 419. The fact that "[d]ecent housing for the people of our state is a most important public concern" does not, as a matter of course, render the permissibility of NHF providing down payment assistance in Washington an issue of substantial importance. RCW 43.180.010. Rather, the Commission's pursuit of a declaratory judgment that NHF lacks authority to provide such assistance presents a narrow issue of the alleged preemptive effect of a state law, chapter 43.180 RCW, on a nonstate actor. Housing is involved only by implication. As in Grant County, where this court held that two fire districts did not have standing when the "only interest sought to be protected ... [was] protection of their tax base," here, the Commission seeks to protect its revenue base by excluding NHF from the federally insured mortgage securities market in Washington. 150 Wash.2d at 804, 83 P.3d 419.

¶44 In sum, I would hold that the Commission's claim is not within the zone of the interests protected by chapter 43.180 RCW, nor does it present an issue of substantial public importance. Thus, the Commission failed to establish standing under the UDJA. I respectfully dissent.

Gordon McCloud, J.

Madsen, J.

      Also named as defendants are the two associations of California counties that created NHF, Rural County Representatives of California and Golden State Finance Authority.

      Our discussion of the requirements of the FHA mortgage insurance program is meant to provide context to the Commission's claims, not to interpret federal law.

      NHF also maintained its claim that the court lacked personal jurisdiction over RCRC and GSFA.

      The requirements for standing often overlap with the requirement that the lawsuit present a justiciable controversy. To-Ro Trade Shows v. Collins, 144 Wash.2d 403, 411, 27 P.3d 1149 (2001) (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973) ). In its motion for summary judgment, NHF argued that the justiciability requirement was not met because any determination would be advisory rather than final and conclusive. On appeal, NHF argued only that the Commission lacks standing, so we need not address the remaining justiciability requirements. See Five Corners Family Farmers v. State, 173 Wash.2d 296, 302 n.2, 268 P.3d 892 (2011).

      Both the dissent and the Court of Appeals find it significant that the delegation of governmental authority to the Commission in chapter 43.180 RCW is not exclusive. See dissent at 542-43; Wash. State Hous. Fin. Comm'n, No. 76510-8-1, slip op. at 8. But the Commission has never claimed exclusive authority. Instead, the Commission argues that "the mere fact that the legislature has delegated similar authority to local Washington government agencies does not bar the Commission from challenging NHF's lack of authority." Pet'r Wash. State Hous. Fin. Comm'n's Suppl. Br. at 11 (emphasis omitted). All parties agree that both the Commission and the local entities are authorized to act in a governmental capacity in this area. The Commission's challenge is based on NHF's alleged lack of any kind of authority to operate as a government entity anywhere in Washington.

      See Skagit County, 177 Wash.2d at 738, 305 P.3d 1079 (Madsen, C.J., dissenting) (noting that the majority's holding that one rural public hospital district may not operate within the territory of another "is contrary to this legislative intent because it has the potential to diminish rather than enhance rural patients' access to health care services").