author: MADSEN, J.

text:
    In the MATTER OF Levi GUERRA, Esther V. John, and Peter B. Chiafalo, Appellants.
    No. 95347-3
    Supreme Court of Washington.
    Argued January 22, 2019 Filed MAY 23, 2019
    Jonah Harrison, Arete Law Group PLLC, 1218 3rd Avenue, Suite 2100, Seattle, WA 98101-3094, Lester Lawrence Lessig, Harvard Law School, 1563 Massachusetts Avenue, Cambridge, ME 02138, Sumeer Singla, Williams Kastner, 601 Union Street, Suite 4100, Seattle, WA 98101-1368, Jason Seth Harrow, 3143 S. La Cienega Blvd., Los Angeles, CA 90016, for Appellants.
    Callie Anne Castillo, Washington State Attorney General Office, 1125 Washington Street SE, Olympia, WA 98504-0100, for Respondents.
    Mark S. Leen, Inslee Best Doezie & Ryder PS, 10900 NE 4th Street, Suite 1500, Bellevue, WA 98004-8345, for Amicus Curiae (Independence Institute).
    Michael Craig Subit, Frank Freed Subit & Thomas LLP, 705 2nd Avenue, Suite 1200, Seattle, WA 98104-1798, for Amicus Curiae (Michael L. Rosin).
   MADSEN, J.

¶1 Appellants Levi Guerra, Esther John, and Peter Chiafalo moved for direct appeal of a Thurston County Superior Court decision upholding the imposition of a $ 1,000 fine for failing to cast their votes in the United States Electoral College in accordance with the popular vote in the State of Washington. They argue the fine is a violation of article II, section 1 of the United States Constitution, the Twelfth Amendment, and the First Amendment.

¶2 For the reasons below, we reject appellants' argument and affirm the trial court.

FACTS

Background Facts

¶3 Under Washington State election law RCW 29A.56.320, each political party with presidential candidates is required to nominate electors from its party equal to the number of senators and representatives allotted to the state. People nominated are required to pledge to vote for the candidate of their party. , Should nominees choose not to vote for their party candidate, they may be subject to a civil penalty of up to $ 1,000. See RCW 29A.56.340. The people of the state do not vote for presidential electors. Rather, they vote for presidential candidates. The nominees of the party that wins the popular vote are appointed by the legislature to be Washington State's presidential electors. Along with all but two other states, Washington has a "winner-take-all" electoral system.

¶4 Appellants were nominated as presidential electors for the Washington State Democratic Party ahead of the 2016 presidential election. Hillary Clinton and Tim Kaine won the popular vote in Washington State, meaning appellants and their fellow Democratic Party nominees were appointed by the legislature to serve as electors for the State of Washington.

¶5 Based on the results from the nationwide election, it was expected that Donald Trump would become the next president. Nationwide, some electors, including appellants, announced they would not vote for either Clinton or Trump and would instead attempt to prevent Trump from receiving the minimum number of Electoral College votes required to become president. Under the Constitution, if no candidate receives a majority of the Electoral College votes, the House of Representatives is to determine who will be the next president.

¶6 On December 19, 2016, appellants, along with the other presidential electors, met in Olympia to cast their ballots. Appellants did not vote for Hillary Clinton and Tim Kaine, as required by their pledge, but instead voted for Colin Powell for president and a different individual for vice-president. These votes were counted and transmitted to Congress for the official tally of the electoral votes. On December 29, 2016, the Washington secretary of state fined appellants $ 1,000 each, under RCW 29A.56.340, for failing to vote for the nominee of their party.

Procedural Facts

¶7 Appellants appealed their fines to an administrative law judge (ALJ), arguing the fines were unconstitutional. Having no authority to rule on constitutional matters, the ALJ upheld the imposition of the fine, and appellants appealed to the Thurston County Superior Court.

¶8 The appeal was heard before Judge Carol Murphy of the Thurston County Superior Court. In affirming the secretary of state, the trial court noted the fine was constitutionally permissible because "[t]he State is not adding a qualification, nor is the State here requiring specific performance of the pledge." Verbatim Report of Proceedings at 49. Appellants timely filed a notice of appeal and filed a motion for direct review in this court.

ANALYSIS

State Authority under the Constitution

¶9 Appellants claim that as presidential electors, they perform a federal function. Further, they contend that electors are intended to exercise independent judgment in casting their ballots and that imposition of a fine by state law for failing to vote in a particular way interferes with a federal function in violation of the Constitution.

¶10 Electors rely heavily on the origins of the Electoral College, so we begin there. When the Electoral College was first created, there were a number of competing proposals for selecting the executive. Some delegates to the Constitutional Convention of 1787 proposed that the national legislature should select the president. See Matthew J. Festa, The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 VAND. L. REV. 2099, 2109-10 (2001). Initially, this proposal generally enjoyed agreement. Id. at 2109. However, some feared that entrusting selection of the executive to the legislative branch would compromise the independence of the executive branch. Id. at 2110. As an alternative, one delegate suggested that the president be appointed by the people. Id. He also suggested a system that divided the states into districts with an elector being appointed in each district who would then elect the president.

¶11 As the debates continued, the two significant, competing proposals were direct popular election and appointment of the executive by Congress. Id. at 2112-13. The idea of a national vote gained support among the delegates due to strong concerns about the legislative branch appointing the executive. Id. at 2113. James Madison advocated for the national vote, but delegates from the small states objected, seeing it as disadvantageous for their states. Id. at 2114. When the delegates appeared deadlocked, a committee with one representative from each state was tasked with finding a reasonable solution. Id. at 2115. Ultimately, the committee returned with a proposal similar to today's Electoral College system-the president would be selected by a number of electors, based on the number of members of Congress each state was entitled to, who would be appointed by their respective states in such manner as they see fit. Id. at 2116. The system was later revised so that in the event of a runoff election, the president would be selected by the House of Representatives and the vice-president would be elected by the Senate. Id. at 2119.

¶12 When gathering support for ratification of the Constitution, Alexander Hamilton later wrote about the system agreed to in the convention and how it operated. See THE FEDERALIST NO . 68 (Alexander Hamilton). Hamilton noted the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station." Id. "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation." Id. He opined that selecting several electors to nominate the president would be more prudent than having just one elector nominating the president. Similarly, having the electors vote secretly by ballot and within their respective states would serve to obstruct "cabal, intrigue, and corruption" from entering the electoral process. Id.

¶13 The Electoral College system was adopted in article II, section 1 of the Constitution and limits the number of electors from each state to the number of senators and representatives allocated to the state. U.S. CONST . art. II, § 1, cl. 2. Additionally, no senator, representative, or persons holding federal offices of trust or profit could be selected as electors. Id.

¶14 The manner of appointment of electors was left to the states. In the first presidential election, the majority of states decided their respective state legislatures would appoint electors to the Electoral College. See Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 FORDHAM L. REV . 965, 968 (2016). Now, every state nominates electors through the popular vote. See id. Every state except for Maine and Nebraska employs a winner-take-all method of allocating elector votes. Id.

¶15 The initial Electoral College system was not without its flaws. The greatest problem was that the Constitution did not require electors to vote for a president and vice-president separately. This oversight manifested in the presidential election of 1800. John Adams picked Charles Pinckney as his running mate, while Jefferson chose Aaron Burr. Id. at 975. Jefferson and Burr both received 73 electoral votes even though Burr was running for vice-president. Id. As a result of the tie, the presidential election was sent to the House of Representatives. Id. To prevent a recurrence of the problem, the Twelfth Amendment was passed, requiring electors to cast one vote for the president and one vote for vice-president. U.S. CONST . amend. XII.

¶16 Historically, the Electoral College has been largely a formality, as generally the electors would cast their votes consistent with the popular vote of their respective state. See Norman R. Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Sub constitutional Change, 100 GEO . L.J. 173, 182 (2011). Indeed, even at the outset, "presidential electors were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment." Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 ARIZ. L. REV . 903, 911 (2017). However, there have been instances where an elector voted for another candidate. Williams, supra, at 182. Today most states require some form of pledge by electors to vote for a particular party's candidate, and a number of states also have adopted ramifications should an elector vote contrary to that pledge.

Id. at 182 & n.36. Neither article II, section 1, nor the Twelfth Amendment addresses electors' discretion in casting their votes.

¶17 Against this backdrop, appellants first argue that because the Court in Burroughs v. United States, 290 U.S. 534, 54 S. Ct. 287, 78 L.Ed. 484 (1934), held the electors in the Electoral College perform a federal function when casting their ballots, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), precludes the State from imposing a fine because it unconstitutionally interferes with a federal function. Br. of Appellants at 9.

¶18 Burroughs is one of the earliest cases where the Supreme Court has held presidential electors perform a federal function when casting their votes in the Electoral College. In Burroughs, the petitioners were charged with multiple counts of violating the Federal Corrupt Practices Act, 2 U.S.C. §§ 241 - 256. The act was the first comprehensive campaign reform statute and required that federal candidates disclose financial information. Burroughs, 290 U.S. at 540-42, 54 S.Ct. 287. The petitioners challenged the indictment, arguing in part that the act contravened article II, section 1 of the Constitution. Id. at 542, 54 S. Ct. 287.

¶19 While the court noted, "[P]residential electors are not officers or agents of the federal government, they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States," the Court determined that Congress enacted the Federal Corrupt Practices Act to "preserve the purity of presidential and vice presidential elections." Id. at 545, 54 S.Ct. 287 (citation omitted), 544, 54 S.Ct. 287. It did not "interfere with the power of a state to appoint electors or the manner in which their appointment" was made and was enacted only to address "political committees organized for the purpose of influencing elections in two or more states. Id. at 544, 54 S. Ct. 287. The statute in no sense invades any exclusive state power." Id. at 545, 54 S. Ct. 287.

¶20 In McCulloch , Congress passed an act to incorporate a national bank. Maryland subsequently passed a law that imposed a tax on all banks in the state. See 17 U.S. at 425. When the tax was challenged, the State argued that Congress did not have the authority to create a national bank, and the states have the authority to tax such an institution. Id. at 400. The Court engaged in a lengthy discussion of whether Congress had the authority to create a national bank. Congress, the Court held, has the power to "lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." Id. at 407. Although not expressly enumerated in the Constitution, the Court held the necessary and proper clause allowed Congress to pursue means that are necessary to the advancement of its enumerated powers. Id. at 418-20. Thus, the Court held the incorporation of the national bank was constitutional. Id. at 423-24.

¶21 The national government, in being given the power to create the national bank, also impliedly wielded the "power to preserve" said creation. Id. at 426. Therefore, a "power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve." Id. The Maryland tax on banks at issue, the Court held, is a power that "may be exercised so as to destroy [the bank]." Id. at 427. Although states have a right to tax the people and their property, "[t]he sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission." Id. at 429. The power to create a national bank however, was "not given by the people of a single state" but, rather, "given by the people of the United States." Id. "[A] single state cannot confer a sovereignty which will extend over them." Id. Maryland, therefore, could not tax the national bank, as it interfered with a federal function.

¶22 Appellants cite a number of examples of state actions that courts have held interfere with a federal function. In Goodyear Atomic Corp. v. Miller , the issue was whether a state could subject a federal nuclear production facility operated by a private entity to a workers' compensation provision for violating a state safety regulation. 486 U.S. 174, 178, 108 S. Ct. 1704, 100 L.Ed.2d 158 (1988). The complainant in that case was injured while performing routine maintenance work at the plant. Id. at 176, 108 S. Ct. 1704. He was awarded $ 9,000 in workers' compensation. Id. The complainant then filed for an additional award under state law, which provides additional compensation when an employer fails to comply with the state's safety requirements. Id. ¶23 The Court stated that "federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides 'clear and unambiguous' authorization for such regulation." Id. at 180, 108 S. Ct. 1704 (quoting Envtl. Prot. Agency v. State Water Res. Control Bd., 426 U.S. 200, 211, 96 S. Ct. 2022, 48 L.Ed.2d 578 (1976) ). However, the Court dismissed the issue of whether a supplemental workers' compensation award is a direct regulation by the states because "[the relevant federal statute] provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility." Id. at 182, 108 S. Ct. 1704. Thus, the Court held that the private contractor could be subject to a supplemental workers' compensation award under state law. Appellants here rely on this case for the principle that a state may not "dictate the manner in which the federal function is carried out." Id. at 181 n.3, 108 S.Ct. 1704.

¶24 Similarly, courts have struck down actions taken under state constitutional provisions when they unconstitutionally interfere with federal functions. In Hawke v. Smith , the issue was whether the people of a state could use popular referendum to veto the state legislature's ratification of the Eighteenth Amendment. 253 U.S. 221, 224-25, 40 S. Ct. 495, 64 L.Ed. 871 (1920). In the state's constitution, any proposed amendment to the Constitution ratified by the General Assembly was also subject to a referendum by the people. Id. at 225, 40 S. Ct. 495. The Court held that "[t]he determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the States, or conventions in a like number of States." Id. at 227, 40 S. Ct. 495. "[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution." Id. at 230, 40 S. Ct. 495. If the Constitution wished direct action by the people, it would have been explicit in doing so. See id. at 228, 40 S. Ct. 495 (citing U.S. CONST . art. I, § 2).

¶25 In Leser v. Garnett, the State of Maryland challenged the validity of the Nineteenth Amendment.

258 U.S. 130, 136, 42 S. Ct. 217, 66 L.Ed. 505 (1922). The State had refused to ratify the proposed amendment. Id. The plaintiffs argued that several states have state constitutional provisions that render their legislatures ratifications invalid. Id. at 136-37, 42 S. Ct. 217. As stated in Hawke, the Leser Court held that "the function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function ... and it transcends any limitations sought to be imposed by the people of a State." Id. at 137, 42 S. Ct. 217.

¶26 Finally, appellants argue this court has also recognized the federal function principle. In Department of Labor & Industries v. Dirt & Aggregate, Inc., this court held that state law cannot subject a federal subcontractor in a national park to its regulations. 120 Wash.2d 49, 52-53, 837 P.2d 1018 (1992). The department in that case sought to enforce provisions of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, in the boundaries of a national park. The appellees in that case had constructed a road within the park, and the department conducted noise and air testing at the site solely under the authority of WISHA.

120 Wash.2d at 50, 837 P.2d 1018. A Washington State statute had ceded " '[e]xclusive jurisdiction ... to the United States over and within all the territory ... set aside for the purposes of a national park.' " Id. at 52, 837 P.2d 1018 (quoting RCW 37.08.200 (formerly Rem. Rev. Stat. § 8110)). Because exclusive jurisdiction now lay in Congress, we reasoned that "state regulation of activities within the federal enclave may resume only with the express permission of Congress." Id. at 53, 837 P.2d 1018. Although the department argued the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 - 678, and a WISHA operational status agreement with the secretary of labor granted it authority, we disagreed, holding that nothing in the language "constitute[s] a specific and unambiguous grant of authority." Id. at 54, 837 P.2d 1018. Based on the above line of cases, appellants argue the imposition of the fine in this case constitutes state interference of a federal function and should be struck down.

¶27 The State does not dispute that presidential electors perform a federal function when casting a vote in the Electoral College. See Br. of Resp't at 12-13. Instead, the State argues that article II, section 1 of the Constitution grants to state legislatures plenary power to appoint electors and determine the manner in which their appointment shall be made, and the fine falls within that broad grant of authority. Id. at 8. The State argues that Ray v. Blair, 343 U.S. 214, 72 S. Ct. 654, 96 L.Ed. 894 (1952), McPherson v. Blacker, 146 U.S. 1, 35, 13 S. Ct. 3, 36 L.Ed. 869 (1892), and Burroughs support its position.

¶28 The issue in Ray, 343 U.S. at 217-18, 72 S.Ct. 654, was whether a state statute requiring electors to pledge their votes to a specific party candidate was unconstitutional. The Supreme Court of Alabama struck the provision down, holding that the pledge was in violation of article II, section 1 and the Twelfth Amendment to the Constitution. Id. at 223, 72 S. Ct. 654. The Court disagreed, holding that nothing in the Constitution prohibits an elector from "announcing his choice beforehand, pledging himself." Id. at 228, 72 S. Ct. 654. The Court went on to note, "History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the long-standing practice." Id. at 228-29, 72 S. Ct. 654 (footnote omitted); see also id. at 228-29 nn.15-16, 72 S.Ct. 654. Indeed, the Court held that while presidential electors exercise a federal function, "they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the Federal Constitution." Id. at 224-25, 72 S.Ct. 654. Ray supports the State's position that nothing in the plain language of either constitutional provision prohibits a state from imposing certain conditions on electors as a part of the state's appointment powers, including requiring electors to pledge their votes.

¶29 In McPherson, the Court recognized that "the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States." 146 U.S. at 35, 13 S.Ct. 3. In that case, at issue was whether Michigan's legislature could require that presidential electors be nominated by congressional district rather than by popular vote. Id. at 24-25, 13 S.Ct. 3. The Court upheld the legislation stating:

If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket, and not by districts.

Id. at 25, 13 S.Ct. 3. The Court noted that the State "acts individually through its electoral college [and] by reason of the power of its legislature over the manner of appointment, the vote of its electors may be divided." Id. at 27, 13 S.Ct. 3. The Constitution does not provide how electors shall be appointed, leaving it exclusively to the legislature to define the method of appointment. Id.

¶30 Also relying on Burroughs, the State argues that although the electors perform a federal function, that Court also noted that the State has exclusive power in appointing electors and the manner in which their appointment shall be made. See 290 U.S. at 544-45, 54 S.Ct. 287. As discussed in Burroughs, the only power left to Congress is " 'the time of choosing the electors, and the day on which they shall give their votes." ' Id. at 544, 54 S. Ct. 287 (quoting U.S. CONST . art. II, § 1). Moreover, in In re Green , the Court stated the "electors for President and Vice President in each State are appointed by the State in such manner as its legislature may direct." 134 U.S. 377, 379, 10 S. Ct. 586, 33 L.Ed. 951 (1890). "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation." Id. (emphasis added). ¶31 The State has the better argument. In each case cited by appellants, the authority that purportedly interfered with the federal function lay not in the states, but rather in Congress. Thus, the threshold issue was whether the State had been given authority to engage in activity that was specifically conferred to the federal government. For example, in McCulloch, the issue was whether a state had the authority to tax a national bank. The Court essentially held that states were not granted the authority to regulate national corporations. A national corporation is a creation unique to the federal government under the necessary and proper clause to carry out one of Congress's enumerated powers. The Constitution does not confer any authority on the states to interfere or control that manner.

¶32 Similarly, in Hawke and Leser, the Court reasoned that the Constitution does not grant to the people of the states the authority to interfere with the ratification of constitutional amendments. Instead, that power was specifically conferred to the legislatures of the states to ratify. That same reasoning was followed by this court in Dirt & Aggregate where we held there was no explicit grant of authority by Congress for the states to regulate in federal parks. Contrast this with Goodyear Atomic where Congress explicitly granted the states authority to enforce their own workers' safety regulations in conjunction with the federal workers' compensation statutes.

¶33 Unlike the cases appellants rely on for support that states cannot interfere with a federal function, here, the Constitution explicitly confers broad authority on the states to dictate the manner and mode of appointing presidential electors. Indeed, Ray undermines the position of appellants because, as noted, the Court there upheld the state's pledge requirement as constitutional. While appellants argue that Ray is limited to the primary election, the Court's holding clearly demonstrates the broad grant of authority to the states under article II, section 1. Burroughs and McPherson also reinforce the principle that the manner of appointment is exclusive to the states. As the Court in In re Green explained, the role of the elector is to "transmit the vote of the State for President," suggesting that the Electoral College vote belongs to the State, not the individual elector. 134 U.S. at 379, 10 S.Ct. 586.

¶34 Finally, nothing in article II, section 1 suggests that electors have discretion to cast their votes without limitation or restriction by the state legislature. To the extent that the federal functions of the electors are mentioned in the Constitution, they are found in the Twelfth Amendment. The Twelfth Amendment simply requires the electors to meet at the specified date and time outlined by Congress and to cast two votes for qualified candidates-one for president and one for vice-president. The Constitution does not limit a state's authority in adding requirements to presidential electors, indeed, it gives to the states absolute authority in the manner of appointing electors. Thus, it is within a state's authority under article II, section 1 to impose a fine on electors for failing to uphold their pledge, and that fine does not interfere with any federal function outlined in the Twelfth Amendment.

Elector Discretion

¶35 Auxiliary to the federal function argument above, appellants argue that electors were intended to exercise discretion when casting votes in the Electoral College. "[I]t was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive." McPherson, 146 U.S. at 36, 13 S.Ct. 3. Appellants cite to a few cases as persuasive. See Op. of Justices, 250 Ala. 399, 400, 34 So. 2d 598 (1948) (proposed amendment to statute that required electors to "cast their ballots for the nominee of the national convention of the party by which they were elected" was likely unconstitutional); Breidenthal v. Edwards, 57 Kan. 332, 46 P. 469 (1896) (candidate has no right to dictate how his name is to be placed on the electoral ticket); Order of U.S. Court of Appeals, Baca v. Hickenlooper, No. 16-1482, 2016 U.S. App. LEXIS 23391 (10th Cir. Dec. 16, 2016) (denying motion for injunction because plaintiffs failed to show they had a likelihood of successfully appealing). These cases, appellants argue, support their position that state legislatures are without authority to " 'restrict the right [to vote] of a duly elected elector.' " Br. of Appellants at 19-20 (alteration in original) (quoting Op. of Justices, 250 Ala. at 401, 34 So.2d 598 ).

¶36 We find these cases inapt. The Opinion of Justices was an advisory opinion that speculated on the constitutionality of a proposed amendment before it was enacted. More importantly, it was published prior to Ray, which overturned that court's decision, in part, based on similar rationale to Opinion of Justices. As to Breidenthal, appellants rely on one sentence that was not dispositive. In Baca , the plaintiffs filed for a preliminary injunction to prevent the secretary of state from removing them as presidential electors. But the court denied their motion, holding they failed to show there was a likelihood the plaintiffs would succeed on the merits. Appellants urge that Baca is instructive where the court, in dictum, noted the State of Colorado would be unlikely to remove a presidential elector after voting had begun both because the Colorado statute provided only for filling vacancies prior to the start of voting and " 'in light of the text of the Twelfth Amendment.' " Br. of Appellants at 20 (quoting Baca, 2016 U.S. App. LEXIS 23391, at * 16 n.4). We find other language in the court's opinion far more relevant. Significant here, the court pointed out that the electors had failed "to point to a single word in any [constitutional provision] that support their position that the Constitution requires that electors be allowed to exercise their discretion in choosing who to cast their votes for." Order at 10.

¶37 Appellants also argue a fine impermissibly adds new requirements that do not appear in the Constitution. They argue the only requirements to be nominated as an elector are that they cannot be a senator, representative, or other person holding an office of profit or trust; they must vote for at least one person who is not an inhabitant of the same state with themselves; and the person must be eligible for the office of president. See Br. of Appellants at 21-22. Appellants cite two cases that they argue support their contention. In U.S. Term Limits, Inc. v. Thornton, the issue was a state's proposed amendment that would prevent eligible candidates from appearing on the ballot if they have served more than three terms as a representative or two terms as a senator. 514 U.S. 779, 783, 115 S. Ct. 1842, 131 L.Ed.2d 881 (1995) (term limits for federal officers). The Court there rejected the proposed amendment, holding that the states lack power to add qualifications. Id. at 805, 115 S. Ct. 1842. In Powell v. McCormack, the Court held that Congress did not have the authority to exclude members-elect after they were duly elected by the people. 395 U.S. 486, 547-48, 89 S. Ct. 1944, 23 L.Ed.2d 491 (1969). These cases offer little support for appellants' position. U.S. Term Limits rests on explicit language in article I, section 2 that is not present here, and Powell is a limit on congressional, not state, authority. We acknowledge that some framers had intended the Electoral College electors to exercise independent judgment, but the Court in Ray reflects the historic reality. As the Court noted, "The suggestion that in the early elections candidates for electors ... would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept." Ray, 343 U.S. at 228, 72 S.Ct. 654. While "[i]t is true that the Amendment says the electors shall vote by ballot," "it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself." Id. Even if read as narrowly as appellants urge, Ray's holding rests on a rejection of appellants' position that the Twelfth Amendment demands absolute freedom for presidential electors.

¶38 We believe that Ray disposes of this question. The Twelfth Amendment does not demand absolute freedom of choice for electors. In the same way that the Twelfth Amendment does not prevent an elector from pledging himself, it does not prevent a state from requiring its electors pledge to vote for its party candidate.

First Amendment

¶39 Finally, appellants argue that imposing a fine violates their First Amendment right to vote. In support, appellants argue that voting is an expressive act and is protected from any viewpoint-based restrictive state action. Br. of Appellants at 28. Appellants argue their votes are a personal choice and the State must honor that choice. See id. at 29-30.

¶40 Appellants rely on Miller v. Town of Hull, 878 F.2d 523 (1st Cir. 1989). In that case, a municipal governing board removed members of a public agency for failing to vote in a way the members of the board preferred. Id. at 527. The court held removal was unconstitutional because "the act of voting on public issues by a member of a public agency or board comes within the freedom of speech guarantee of the first amendment. This is especially true when the agency members are elected officials." Id. at 532. "The entire course of conduct by the defendants supports the conclusion that the plaintiffs were suspended because of the position they took as ... members with respect to the housing project .... This was a violation of their first amendment rights." Id. at 533.

¶41 The State, on the other hand, relies on Nevada Commission on Ethics v. Carrigan, arguing that the case supports the imposition of the fine here. 564 U.S. 117, 119, 131 S. Ct. 2343, 180 L.Ed.2d 150 (2011). There, the appellee was under investigation for violating the State's recusal rules by voting to approve an application for a development project that his longtime friend and campaign manager worked on. Id. at 120, 131 S. Ct. 2343. The commission had concluded that he had a conflict of interest, and the appellee appealed, arguing the law was unconstitutional under the First Amendment. Id. at 120-21, 131 S. Ct. 2343. The Supreme Court reversed the Nevada Supreme Court's holding that the recusal rules violate the First Amendment. In doing so, the Court held that "a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it." Id. at 125-26, 131 S. Ct. 2343.

¶42 Nevada Commission is analogous here because electors act by authority of the State. See Ray, 343 U.S. at 224-25, 72 S.Ct. 654. It is the "sole function of the presidential electors ... to cast, certify and transmit the vote of the State for President and Vice President of the nation." In re Green, 134 U.S. at 379, 10 S.Ct. 586. In essence, the electors are carrying out a state government duty. See Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L.Ed.2d 689 (2006) (speech made in the course of a government duty is not protected by the First Amendment). Indeed, we note the federal district court recently engaged in a similar analysis of an elector's First Amendment rights. See Chiafalo v. Inslee, 224 F. Supp. 3d 1140, 1145 (W.D. Wash. 2016). There, the court rejected the plaintiff's First Amendment argument on similar grounds, recognizing that the "[r]elevant legal authority characterizes electors' role as 'ministerial' [and] limits the context in which the First Amendment protects individuals performing their official, governmental duties." Id. (citation omitted) (discussing Thomas v. Cohen, 146 Misc. 836, 262 N.Y.S. 320, 326 (Sup. Ct. 1933), and Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951 ).

¶43 The power of electors to vote comes from the State, and the elector has no personal right to that role. The "[appellants] chose to stand for nomination as an elector for their party, subject to the rules and limitations that attend the position. They also retain the ability to step down as electors without penalty." Id. (citations omitted). "[I]t is unlikely that casting electoral ballots implicates [appellants'] First Amendment rights." Id.

¶44 We hold the First Amendment is not implicated when an elector casts a vote on behalf of the State in the Electoral College.

CONCLUSION

¶45 Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge. We affirm the trial court.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

Gordon McCloud, J.

Yu, J.

González, J. (dissenting)

¶46 In 1976, Michael J. Padden, a Washington elector, voted for Ronald Reagan even though the Republican Party nominated Gerald Ford. The following year, the legislature enacted a law requiring electors to vote for the candidates nominated by their political party or face a civil penalty of up to $ 1000. LAWS OF 1977, 1st Ex. Sess., ch. 238, §§ 1-2. In 2016, the electors before us did not vote for the candidates nominated by their party. We must decide if the State has the constitutional authority to impose a civil penalty on them. The majority upholds imposition of the civil penalty. I respectfully dissent.

¶47 The State's authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. 343 U.S. 214, 227, 72 S. Ct. 654, 96 L.Ed. 894 (1952) ("It is an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose." (citing U.S. CONST . art. II, § 1)). The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector's discretion. Id. at 228, 72 S. Ct. 654. In dissent, Justice Robert H. Jackson raised concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concerns. He opined, "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices." Id. at 232, 72 S. Ct. 654 (Jackson, J., dissenting) (citing THE FEDERALIST NO . 68 (Alexander Hamilton)).

¶48 There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." Br. for Amicus Curiae Independence Inst. at 8 (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, 4 L.Ed. 579 (1819)). The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. CONST . art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party. I respectfully dissent.

      RCW 29A.56.320 covers how electors are nominated. It reads:
      In the year in which a presidential election is held, each major political party and each minor political party or independent candidate convention that nominates candidates for president and vice president of the United States shall nominate presidential electors for this state. The party or convention shall file with the secretary of state a certificate signed by the presiding officer of the convention at which the presidential electors were chosen, listing the names and addresses of the presidential electors. Each presidential elector shall execute and file with the secretary of state a pledge that, as an elector, he or she will vote for the candidates nominated by that party. The names of presidential electors shall not appear on the ballots. The votes cast for candidates for president and vice president of each political party shall be counted for the candidates for presidential electors of that political party; however, if the interstate compact entitled the "agreement among the states to elect the president by national popular vote," as set forth in RCW 29A.56.300, governs the appointment of the presidential electors for a presidential election as provided in clause 9 of Article III of that compact, then the final appointment of presidential electors for that presidential election shall be in accordance with that compact.

      Appellants do not challenge the requirement that electors pledge to vote for the candidates who win the popular vote.

      During the 2016 election, seven presidential electors across the country voted for someone other than their pledged candidate. Four of these "faithless electors" were a part of Washington State's contingency to the Electoral College. See Kiersten Schmidt & Wilson Andrews, A Historic Number of Electors Defected, and Most Were Supposed to Vote for Clinton, N.Y. Times (Dec. 19, 2016), https://www.nytimes.com/interactive/2016/12/19/us/elections/electoral-collegeresults.html.

      RCW 29A.56.340 outlines the procedure for casting electoral votes and the penalty for failing to vote for the nominee of the elector's party. It reads:
      The electors of the president and vice president shall convene at the seat of government on the day fixed by federal statute, at the hour of twelve o'clock noon of that day. If there is any vacancy in the office of an elector occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill it by voice vote, and plurality of votes. When all of the electors have appeared and the vacancies have been filled they shall constitute the college of electors of the state of Washington, and shall proceed to perform the duties required of them by the Constitution and laws of the United States. Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.
      (Emphasis added.)

      Article II, section 1 of the Constitution reads, in part:
      Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
      The Twelfth Amendment reads:
      The electors shall meet in their respective states and vote by ballot for president and vice president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the senate; the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates and the votes shall then be counted; the person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice president shall act as president, as in the case of the death or other constitutional disability of the president. The person having the greatest number of votes as vice president, shall be the vice president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.

      It is unclear what specific state constitutional provisions were alleged to invalidate legislatures' ratification of the Nineteenth Amendment.

      Appellants argue Hamilton's Federalist Papers supports the framers intended the electors to exercise discretion as they would have the " 'information and discernment' necessary to choose a wise President." Br. of Appellants at 16 (quoting The Federalist No . 68 (Alexander Hamilton)); see supra p. 6.

      We also note that appellants and amici argue elector discretion is required by the language of the Constitution. They argue the phrase "by Ballot" means a "personal, secret ballot." Br. of Appellants at 16; see also Br. for Amicus Curiae Independence Inst. at 3-5. While it is plausible that the framers meant for the electors to cast their ballots "in secret," it is equally plausible the framers used the word "ballot" to describe a device used to record the electors' votes. See Black's Law Dictionary 171 (10th ed. 2014) ("An instrument ... used for casting a vote.") Indeed, the names of every presidential elector is on a state's certificate of ascertainment submitted to Congress. See 3 U.S.C. § 5. Moreover, we know how Washington State's presidential electors individually voted for president and vice-president in the 2016 election. See Natalie Brand, Washington State Electors Vote for Clinton, Powell, Faith Spotted Eagle, King5 News (Dec. 20, 2016, 6:22 AM), https://www.king5.com/article/news/politics/washington-state-electors-vote-for-clinton-powell-faith-spotted-eagle/281-373558515; Liza Javier, PresidentialBallots, King5 News , https://www.documentcloud.org/documents/3243191-PresidentBallots.html; Liza Javier, VicePresidentBallots, King5 News , https://www.documentcloud.org/documents/3243190-VicePresidentBallots.html.
      A number of "faithless electors" have surfaced in prior elections. See, e.g., Subcomm. on Constitutional Amendments of Comm. on the Judiciary, 87th Cong ., The Electoral College, Operation and Effect of Proposed Amendments to the Constitution of the United States 9 (Comm. Print 1961) (Henry D. Irwin of Oklahoma defected and voted for Senator Harry F. Byrd instead of Richard Nixon); Note, State Power To Bind Presidential Electors, 65 Colum. L. Rev . 696 (1965). We know of "faithless electors" also appearing in our nation's early elections. See Note, supra, at 701 nn.40-41 (In 1796, Federalist Elector Samuel Miles voted for the antifederalist candidates, Jefferson and Pinckney. In 1820, New Hampshire elector William Plumer voted for John Quincy Adams instead of James Monroe.). The fact that "faithless electors" have been identified throughout our nation's history suggests "ballot" simply means "to record a vote," rather than to vote in secret.

      Appellants say that Ray is not controlling here because the Court did not address enforceability of the pledge requirement. They argue there is a distinction between moral authority and legal enforceability. See Reply Br. of Appellants at 15-16. But Ray does make clear that the State may impose obligations such as a pledge and thus rejects unfettered elector discretion.

      Some of the appellants filed for preliminary injunction in federal court prior to the State assessing the fine complained of here. Judge James Robart denied their preliminary injunction, rejecting nearly identical arguments the appellants make before us.

      Official Ballot for the Position of President (Dec. 13, 1976) (on file with Wash. State Archives, Electoral College and Federal Election Certifications, 1948-2012).


source: Caselaw Access Project

author: JOHNSON, J. (dissenting)

license: Public Domain

text:
    Monica Diaz BARRIGA FIGUEROA, as parent and natural guardian of Brayan Martinez, a minor, Respondent, v. Consuelo PRIETO MARISCAL, individually and the marital property thereof, if any, Petitioner.
    No. 95827-1
    Supreme Court of Washington.
    Oral Argument Date: March 14, 2019 Filed May 23, 2019
    Joseph D. Hampton, Michelle Elizabeth Kierce, Betts, Patterson & Mines, P.S., 701 Pike Street, Suite 1400, Seattle, WA 98101-3927, Steven M. Cronin, Attorney at Law, 115 N. Washington Street, Suite 3, Spokane, WA 99201-0657, for petitioner.
    Ned Stratton, Brian J. Anderson, Anderson Law PLLC, 5861 W. Clearwater Avenue, Kennewick, WA 99336-1849, George M. Ahrend, Ahrend Law Firm PLLC, 100 E. Broadway Avenue, Moses Lake, WA 98837-1740, for respondent.
    Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attomey at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae (Washington State Association for Justice Foundation).
    González, J
    ¶ 1 Washington law extends work product protection to statements made by an insured to an insurer following an accident in light of the specific parties involved and the expectations of those parties. We must decide if that protection applies here, where the insured has gained the status of insured by statute, rather than by contract. We hold it does. We affirm the Court of Appeals and remand to the trial court for a new trial.
    FACTS
    ¶ 2 On October 30, 2013, Consuelo Prieto Mariscal was driving her minivan in Pasco, Washington, with her daughter. There were vehicles, including an orange pickup truck and a van, on the right side of the road. As Prieto passed the orange pickup truck, she heard a noise, felt her van jump a little, and saw a boy, Brayan, lying on the ground. Realizing Brayan was seriously hurt, her daughter called 911. Brayan was taken to a nearby hospital.
    ¶ 3 A police officer spoke with Prieto and her daughter but not Brayan or his mother, Monica Diaz Barriga Figueroa. Prieto and her daughter both told the officer they did not see how the accident happened. Although there were no other eyewitnesses, and although the officer spoke only with Prieto and her daughter, he wrote in the police report:
    On 10/30/13 at 1456 VI was traveling S/N 400 block of North Cedar when an 8 YOA age child on a bicycle rode into the roadway and directly in front of VI. There were two parked vehicles on the shou[ld]er of the roadway that created a blind spot for the driver of V1. When the bicyclist pulled into the roadway the rider was struck on the left side and fell to the ground. The passenger side front tire then drove over the child['s] right front leg. The child was [transported to] an area hosp[it]al via ambulance for treatment.
    Clerk's Papers at 305. Brayan gave a number of statements about the accident. Brayan's most detailed version of the accident is that his right shoelace got stuck in the spokes of his bike and his right leg was run over when he leaned over to untangle the shoelace.
    ¶ 4 Three weeks after the accident, Diaz went to a local law firm to seek help. Diaz was asked to sign a blank personal injury protection (PIP) application form, so she did. Diaz is a monolingual Spanish speaker, and the legal assistant who met with her is a monolingual English speaker.
    This presigned PIP form was filled out later by the legal assistant based on the police report. Section five of the form asked for a brief description of the accident. Mirroring the police report, the legal assistant wrote:
    Vehicle was traveling on North Cedar when child on a bike rode into road. There were 2 parked cars on the road creating a blind[ ] spot for the driver. Child was struck & had right leg ran over.
   Def.'s Ex. 101, at 1. In addition to seeking PIP coverage, Diaz also sued Prieto on behalf of Brayan. The significant difference between the PIP form and Brayan's testimony became a central issue at trial. Prieto's counsel stressed the differences between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed that the PIP form was based on accounts from people who did not see the accident.

¶ 5 During opening statements, Prieto's counsel referenced the PIP form over Diaz's counsel's objection. After opening, out of the presence of the jury, Diaz's counsel addressed Prieto's counsel's use of the PIP form in opening and moved to exclude any further reference to it:

Your Honor, in anticipation of today's trial, in defendant's opening he brought up some piece of evidence that I think he might try to bring up again.
One was a Personal Injury Protection application. ...
It's a first-party application and privilege is not waived when you submit something to first-party insurance. And, in fact, first-party insurance is not supposed to share the PIP file with defense without permission of plaintiff.
In this case, he somehow got a copy of the PIP application. This raises a number of concerns. The PIP application is a no-fault insurance application, meaning that the description of the accident has no bearing on whether or not you get benefits in a PIP application.
....
He wants to use this PIP application as a statement against interest of [Diaz]. ...
... [Because this is a privileged document,] even though he already referenced it in his opening, and I objected to it then, I would move to exclude any further reference to this Personal Injury Protection application.

1 Report of Proceedings (RP) (June 2, 2016) at 119-21. Prieto's counsel responded:

First of all, this document is not privileged. ... This is an application form for Personal Injury Protection benefits for Brayan's treatment.
....
There is no law that the PIP application is not to be shared with defense counsel. Plaintiff has not cited to you any authority. That's important to keep in mind.
The PIP insurance coverage is, in essence, a no fault benefit provided on the insurance policy insuring Ms. Prieto. Okay?
So it's her insurance company that's providing this benefit of medical coverage to Brayan. There is no law that certainly the plaintiff has cited that prevents that information to be shared with me or Ms. Prieto's insurance company.

Id. at 121-22. The court then took a voir dire examination of Diaz to establish her knowledge of the PIP form and who filled it out.

¶ 6 After voir dire, and after argument by counsel for both sides, the court concluded:

Well, it's sort of odd this particular statement ... we have a statement signed by a party and yet, so arguably, it's a statement by the party versus the agent speaking on her behalf, which what we have here is this statement on its face doesn't show that it was the agent.
Now, we have testimony that does show that it was an agent who spoke essentially or had the party's authority to write it, because she essentially signed it and handed it over.
So the Court is going to find, first, that it's not a privileged document. That in redacted form, it doesn't violate the motion in limine as to collateral source. I do find it's an admission against interest under the rule as cited.
It will be allowed and that's my ruling.

Id. at 134-35. A redacted version of the PIP application was admitted into evidence. See Def.'s Ex. 101. Prieto's counsel then used the application to cross-examine Diaz:

Q. And three weeks after [speaking with Brayan about the accident at the hospital], you signed what's been admitted as Exhibit 101, with a description of the accident. Correct?
A. I signed it when it was blank.
Q. Okay. And the description reads, "Vehicle was traveling on North Cedar when child on bike rode into road. There were two parked cars on the road, creating a blind spot for the driver. Child was struck and had right leg ran over."
Correct?
A. I didn't know - I didn't know about that.
Q. But that's what the description states. Correct?
A. Yes. But I guess they got that from the police report because if I would have known that they were going to write that on it, I would not have signed it because I'm not in agreement with that.

2 RP (June 3, 2016) at 298-99. Prieto's counsel also used the application to cross-examine Diaz's accident reconstructionist, to support Prieto's reconstructionist's expert opinion, and, in closing argument, to question Diaz's credibility. Use of the PIP form was extensive, and the PIP form was the primary exhibit in the case because the police report was excluded as substantive evidence at trial as hearsay.

¶ 7 The jury returned a defense verdict. The Court of Appeals reversed, holding the PIP application was work product and its admission was prejudicial, requiring a new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wash. App. 2d 139, 414 P.3d 590 (2018). We granted Prieto's petition for review and denied the issues raised by Diaz. Barriga Figueroa v. Prieto Mariscal, 191 Wash.2d 1004, 424 P.3d 1214 (2018). Washington State Association for Justice Foundation filed an amicus brief.

ANALYSIS

I. Quasi-fiduciary relationship

¶ 8 Since 1993, the State of Washington has required all insurers to offer PIP coverage to all automobile liability policyholders. See LAWS OF 1993, ch. 242. PIP insurance is designed to provide the insured with an immediate source of payment for out-of-pocket expenses resulting from an automobile accident. PIP benefits are available to an insured without proof of fault, and a pedestrian injured in an automobile accident is statutorily defined as an "insured." RCW 48.22.005(5)(b)(ii). Brayan, therefore, was an insured under Prieto's PIP coverage. Id.; cf Matsyuk v. State Farm Fire & Cas. Co., 173 Wash.2d 643, 654 n.4, 272 P.3d 802 (2012).

¶ 9 Under Washington law, insureds and insurers are in a quasi-fiduciary relationship. See Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wash.2d 784, 793, 16 P.3d 574 (2001) ; Tank v. State Farm Fire & Cas. Co., 105 Wash.2d 381, 385-86, 715 P.2d 1133 (1986). This quasi-fiduciary "relationship exists not only as a result of the contract between insurer and insured, but because of the high stakes involved for both parties to an insurance contract and the elevated level of trust underlying insureds' dependence on their insurers." Tank, 105 Wash.2d at 385, 715 P.2d 1133. Thus the quasi-fiduciary relationship arises not only out of the contract but also out of the type of occurrences that are covered by insurance, the high stakes of insurance litigation, and the necessary trust and reliance that an insured places on its insurer. See Br. of Amicus Curiae Wash. State Ass'n for Justice Found, at 8 ("An insurer's duty to exercise good faith is not limited to its contractual obligation to pay benefits, but 'permeates the insurance arrangement.' " (quoting St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 165 Wash.2d 122, 129, 196 P.3d 664 (2008) )).

¶ 10 By making the PIP claim on the tortfeasor's insurance company, the insurance company is also the pedestrian's insurer. RCW 48.22.005(5)(b)(ii). Even without a contract, the PIP claimant is required to cooperate with the insurer or risk denial of coverage.

¶ 11 We hold that an insurer owes a pedestrian PIP insured the same quasi-fiduciary duties that it owes a named insured who purchases a policy. Specifically, the " 'insurer must deal fairly with an insured, giving equal consideration in all matters to the insured's interests.' " See Van Noy, 142 Wash.2d at 794-95, 16 P.3d 574 (emphasis omitted) (quoting Tank, 105 Wash.2d at 386, 715 P.2d 1133 ). This approach is consistent with our common law and the plain language of RCW 48.01.030, which requires insurers to act in "good faith, abstain from deception, and practice honesty and equity in all insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in mind, we turn to the work product issue.

II. Work Product

¶ 12 The Court of Appeals found the PIP form was protected work product. We agree. The work product rule states:

[A] party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including a party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

CR 26(b)(4). Where the insured was the policyholder, we have held work product protections apply. See Heidebrink v. Moriwaki, 104 Wash.2d 392, 396, 706 P.2d 212 (1985) ; Harris v. Drake, 152 Wash.2d 480, 490, 99 P.3d 872 (2004). Here, the insurance relationship exists as a matter of statute, not contract. Nonetheless, we find the overarching reasoning of Heidebrink and Harris applies because the specific parties are in a quasi-fiduciary relationship. As such, Diaz may reasonably expect her insurer to give equal consideration to her interests as its own and has an expectation of confidentiality in the forms she submits.

¶ 13 Heidebrink is the leading case interpreting the work product rule in Washington in the context of communications between insureds and their insurers. 104 Wash.2d at 396, 706 P.2d 212. We held there was a "reasonable expectation that the contents of statements made by the insured will not be revealed to the opposing party." Id. at 400, 706 P.2d 212. After a searching review of scholarship and case law in other jurisdictions, we concluded:

[T]he better approach to the problem is to look to the specific parties involved and the expectations of those parties. With these parties in mind, the scope of CR 26(b)(3)[ ] should provide protection when such protection comports with the underlying rationale of the rule to allow broad discovery, while maintaining certain restraints on bad faith, irrelevant and privileged inquiries in order to ensure just and fair resolutions of disputes.

Id. at 399-400, 706 P.2d 212 (emphasis added). Therefore, in determining whether a statement is prepared in anticipation of litigation and therefore covered under CR 26(b)(4), we must look to the specific parties involved and the expectations of those parties, the rationale for the rule, and the need to restrain bad faith and intrusion into privileged materials. See also Harris, 152 Wash.2d at 489, 99 P.3d 872 (" Heidebrink requires examination of the relationship of the parties in each case.").

¶ 14 Subsequently, in Harris, we applied Heidebrink and held that work product protection applied to an insured's independent medical examination performed at the request of the PIP insurer, based on the specific parties and their expectations. Id. at 490-91, 99 P.3d 872. In doing so, the Harris court carefully scrutinized the parties' relationship-emphasizing that "the relationship between an insured and his or her insurer is sometimes adversarial, while at other times the interest of the insured and insurer are aligned. This dual relationship requires close examination, evaluating the specific positions of the insurer and insured in each instance." Id. at 489, 99 P.3d 872.

¶ 15 Analyzing the specific parties and their expectations here, as we must under Heidebrink and Harris, we emphasize there is a dual relationship between Diaz and Brayan and their insurer. As a tort plaintiff against the named insured, Diaz and Brayan's relationship with the insurer is adversarial. As a pedestrian PIP insured, they are in a quasi-fiduciary relationship with the insurer. As such, Diaz and Brayan reasonably expect their insurer to deal fairly with them and give equal consideration in all matters to their interests. ¶ 16 Further, as Brayan's parent and natural guardian, Diaz went to a law firm for legal assistance. As part of providing that legal assistance, the law firm sent a PIP application form to the parties' shared insurance company. Diaz did not fill out the forms herself, and it cannot be seriously contended that she sought legal assistance merely to have help filling out forms-Prieto ran over her eight-year-old son's leg, seriously injuring him. That no lawsuit had been filed when Diaz prepared Brayan's PIP application is of no consequence; Diaz plainly signed the form in anticipation of litigation, in a lawyer's office, with assistance from the law firm ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements been "made directly to the [insurance company's] selected attorney, it would obviously have been made in anticipation of litigation." 104 Wash.2d at 400, 706 P.2d 212. The statements were made in anticipation of litigation. Thus, we hold work product protections apply.

III. Prejudice

¶ 17 Having concluded it was error for the trial court to hold the document was not protected, we must next determine whether the trial court's error was of sufficient magnitude to necessitate a new trial. Prieto argues there is no prejudice because the evidence was cumulative and admission of cumulative evidence is harmless.

¶ 18 When a trial court makes an erroneous evidentiary ruling, the question on appeal becomes whether the error was prejudicial, for error without prejudice is not grounds for reversal. Driggs v. Howlett, 193 Wash. App. 875, 903, 371 P.3d 61 (2016) (citing Brown v. Spokane County Fire Prot. Dist. No. 1 , 100 Wash.2d 188, 196, 668 P.2d 571 (1983) ). Error will be considered prejudicial if it presumptively affects the outcome of the trial. James S. Black & Co. v. P&R Co ., 12 Wash. App. 533, 537, 530 P.2d 722 (1975). Improper admission of evidence constitutes harmless error if the evidence is cumulative. Hoskins v. Reich, 142 Wash. App. 557, 570, 174 P.3d 1250 (2008).

¶ 19 Prieto argues the evidence is cumulative because the statement as to how the accident happened, as stated in the PIP application, was cumulative of the trial testimony of Diaz's own accident reconstruction expert. Prieto argues, "Before the PIP application was admitted, the expert testified as to Brayan's 'explanation of how he rode that day, prior to being hit.' Therefore, the record at trial contains undisputed evidence that Brayan himself told his expert he rode into the street prior to being hit." Suppl. Br. of Pet'r at 19 (quoting 1 RP (June 2, 2016) at 167). We are not persuaded by this characterization of the evidence.

¶ 20 Prieto is correct that the expert stated Brayan rode in the street "prior to being hit," i.e., earlier that day, but that is not at issue. 1 RP (June 2, 2016) at 167. At issue is what happened immediately before Brayan was hit. Regarding that issue, the PIP form says "child on a bike rode into road " and due to a blind spot "was struck," which Prieto used to attack Diaz's version of the events. Def.'s Ex. 101, at 1 (emphasis added). Diaz said immediately before being hit Brayan was not riding, he was leaned over untangling his shoelace. The PIP form was not cumulative as Diaz's evidence strikingly differed.

¶ 21 Admission of the PIP form prejudiced Diaz. It was used extensively by Prieto's counsel throughout trial. It was used in opening; it was used to cross-examine Diaz and Diaz's accident reconstructionist; it was used to form opinions of the accident by an accident reconstructionist retained on behalf of Prieto; and it was used in closing argument to question Diaz's credibility. Further, when Prieto's counsel used the PIP form, he almost always emphasized the fact that it was signed by Diaz, thereby attributing the statements to her. Diaz did not make these statements; the legal assistant filled out the PIP form based on the police report. Crucially, the speculative statements in the police report were hearsay and the police report was inadmissible at trial for this reason.

¶ 22 Prieto's counsel repeatedly claimed throughout trial that Brayan was hit after he rode his bicycle between two parked cars and into the road. Prieto asserts Diaz's accident reconstructionist's testimony supports this claim but, as discussed above, it does not-the PIP form served as the basis for the claim, and the PIP form was therefore not cumulative. The trial court erroneously admitted the PIP form, and its admission prejudiced Diaz.

CONCLUSION

¶ 23 The PIP form was work product in light of the specific parties and their expectations, and its admission prejudiced Diaz. We affirm the Court of Appeals and remand for a new trial.

WE CONCUR:

Fairhurst, C. J.

Owens, J.

Stephens, J.

Wiggins, J.

Yu, J.

JOHNSON, J. (dissenting)

¶ 24 The work product doctrine is meant to serve as a narrow exception to otherwise broad discovery and is confined to materials that are prepared in anticipation of litigation. Our cases have established that in the insurance context, a determination of whether this protection applies requires that the court conduct a fact-specific inquiry looking at the "specific parties involved and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wash.2d 392, 400, 706 P.2d 212 (1985). We reiterated this factual analysis in Harris v. Drake, where the relationship between the insurer and insured was of particular importance, and we observed that the relationship "requires close examination, evaluating the specific positions of the insurer and insured in each instance." 152 Wash.2d 480, 489, 99 P.3d 872 (2004). The majority acknowledges the fact-specific nature of this inquiry but then ignores it and proceeds to apply work product protection to a personal injury protection (PIP) application form where no factual basis exists to support doing so. Furthermore, even assuming the trial court committed error by admitting the application form, the form was not material to the jury's determination or prejudicial to the plaintiff, and only by selectively mischaracterizing the record does the majority conclude otherwise.

¶ 25 While CR 26(b)(4) protects from discovery "documents and tangible things ... prepared in anticipation of litigation or for trial," this protection is not absolute. In Heidebrink, we acknowledged the particular difficulty in the insurance context of determining whether materials were prepared in anticipation of litigation because litigation is part of the ordinary course of business when dealing with insurance claims. The parties in that case urged adoption of rules governing work product protection in insurance matters that ranged from affording protection only to materials prepared by an attorney to very broad protection of all materials prepared in any insurance investigation. We stated that although the cases presented by the parties were "on point," we believed it would be "inappropriate to subscribe entirely to the rationale of either set of cases." Heidebrink, 104 Wash.2d at 399, 706 P.2d 212 (emphasis added). We instead established our case-by-case, fact-specific analysis and held that courts employing it should seek to comport with the underlying rationale of CR 26(b)(4), allowing broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries. In other words, courts should avoid applying work product protections except where necessary "to ensure just and fair resolutions of disputes." Heidebrink, 104 Wash.2d at 400, 706 P.2d 212.

¶ 26 The majority recognizes that Heidebrink is the controlling case here and purports to engage in an analysis of these parties and their expectations. However, despite a record that is devoid of any indication the plaintiff, Monica Diaz Barriga Figueroa, anticipated litigation, the majority determines work product protection should apply to her PIP application form. What is in the record regarding the application is: (a) it was for no-fault insurance, which here requires no assertion of liability and is, therefore, nonadversarial, (b) Diaz signed it while it was blank, (c) it was completed and submitted before a complaint had been filed against the alleged at-fault driver, Prieto, and (d) a law office helped complete it, including filling in the accident description, using the description from the police report. What is not in the record is any indication that Diaz or her attorney felt this document might be utilized in a lawsuit.

¶ 27 The majority asserts that "it cannot be seriously contended" that Diaz "sought legal assistance merely to have help filling out forms" and then concludes that she signed the PIP application in anticipation of litigation. Majority at 824. But there is nothing in the record to support such a finding; it is pure speculation by the majority. The majority also relies on the "dual relationship" between Diaz and the insurer, arguing that "[a]s a tort plaintiff against the named insured, Diaz and Brayan's relationship with the insurer is adversarial." Majority at 823. This argument ignores that we should be focusing on the expectations of the parties at the time the PIP application was prepared. At that time, no lawsuit had been filed; therefore, the majority's assertion that Diaz was an adversarial tort plaintiff is wrong.

¶ 28 As we indicated in Harris, the relationship between an insured and an insurer is complicated. This relationship "is sometimes adversarial, while at other times the interests of the insured and insurer are aligned," thus, the need for "close examination." Harris, 152 Wash.2d at 489, 99 P.3d 872. Such an examination here reveals no indication of an adversarial relationship between Diaz and the insurer at the time she completed the application form. Only two conditions must exist to qualify for PIP benefits: (1) that a person meets the definition of an "insured" and (2) that a motor vehicle accident occurred that caused the person injury. Because fault plays no factor in coverage, PIP claims are, by nature, nonadversarial.

¶ 29 The record simply does not indicate that Diaz anticipated litigation when she signed the PIP application; it indicates only that she employed an attorney who assisted her with filing a PIP claim. By extending work product protections to this application, the majority seemingly, but without expressly stating so, abandons our fact-specific analysis in favor of broad protection for any materials prepared in the insurance context. If we properly apply what our prior cases established and recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work product protections do not apply here.

¶ 30 But even if we were inclined to find that work product protection extended to the PIP application form and it was error to use it at trial, error without prejudice is not grounds for reversing the jury verdict. Brown v. Spokane County Fire Prot. Dist. No. 1 , 100 Wash.2d 188, 196, 668 P.2d 571 (1983). For an error to be prejudicial, it must be determined that "within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wash.2d 591, 599, 637 P.2d 961 (1981). The majority asserts that the PIP application was prejudicial for two reasons: (1) because it was used by defense counsel to impeach both Diaz and her accident reconstruction expert, Patrick Stadler, and (2) because the PIP form served as the basis for defense counsel's assertion that Diaz's son, Brayan, rode into the road. In doing so, the majority ignores the record, failing to acknowledge that the PIP application form was not important to the issue before the jury, was not the only evidence in front of the jury, and was not the only means by which defense counsel impeached Diaz and Stadler.

¶ 31 During cross-examination of Diaz, defense counsel sought to impeach her testimony on multiple points and overwhelmingly did so using statements other than those in the PIP application. See, e.g., 2 Report of Proceedings (RP) (June 2, 2016) at 283-86 (using Diaz's earlier deposition testimony to impeach her inconsistent testimony regarding how Brayan was positioned when she arrived at the scene); 2 RP (June 3, 2016) at 299-303 (using the initial complaint to impeach Diaz's description of Brayan's conduct leading up to the accident), 304 (using Diaz's deposition testimony to impeach her description of Brayan's conduct leading up to the accident). As to the majority's assertion that the application was used by defense counsel to impeach Stadler, this is entirely unsupported by the record. The application was first brought up during redirect by plaintiff's counsel, and defense counsel questioned him on recross as to whether the description on the application was consistent with the idea that Brayan had been in a blind spot and with the description given in the police report. However, while this form was not used to impeach Stadler, defense counsel did impeach him through other means. See 1 RP (June 2, 2016) at 165-69 (impeaching Stadler using a diagram he drew that was consistent with the defense counsel's theory of the accident), 169-71 (using Stadler's deposition testimony to impeach his assertion that he had not considered the defense's theory of the accident), 171-72 (using Stadler's deposition testimony to impeach him after he avoided answering whether the defense's theory could result in Brayan's injuries).

¶ 32 Significantly, defense counsel illustrated the differing accounts of how the accident occurred using deposition testimony from both Diaz and Stadler, as well as the initial complaint. The majority mischaracterizes the entirety of the trial records by asserting that only the PIP application supported the defense's theory of how the accident occurred. Majority at 824-25. The PIP application was arguably cumulative both as a means of impeachment and as a means of establishing the defense's theory.

¶ 33 It is highly unlikely the jury considered the PIP application form convincing as substantive evidence. At trial, when defense counsel sought to impeach Diaz with the application, she countered by testifying that she signed the application when it was blank and would not have done so if she had known her attorney would use the description from the police report. During recross, Stadler described the accident description in the application and the police report as inconsistent with the physical evidence. Finally, during rebuttal, an employee of Diaz's attorney testified and explained that he, not Diaz, had inserted the description of the accident. Despite all of the evidence and testimony, the majority never explains, and cannot explain, how the de minimis use of the prior inconsistent statement in the PIP application form, made by a nonwitness to the accident, could have possibly had a material effect on the jury's decision.

¶ 34 The Court of Appeals should be reversed.

      Experts for both sides testified the injuries were inconsistent with the injuries that would have been present had he in fact ridden his bike into the road and been struck as he was riding. During trial, Diaz testified she would not have signed the PIP form had she known what the description was going to be because she did not agree with it.

      Tank held an insurer must give "equal consideration" to the insured's interests as its own. Safeco Ins. Co. of Am. v. Butler, 118 Wash.2d 383, 389, 823 P.2d 499 (1992) (quoting Tank, 105 Wash.2d at 385-86, 715 P.2d 1133 ). Although the Tank court characterized the relationship as a fiduciary relationship, later case law restated the relationship as a quasi-fiduciary relationship. See Van Noy, 142 Wash.2d at 793, 16 P.3d 574.

      The rule was renumbered to CR 26(b)(4) in 1990. For ease of reading, we refer to the current numbers. See Harris, 152 Wash.2d at 486 n.1, 99 P.3d 872.

      We respectfully disagree with the dissent's statement that "PIP claims are, by nature, nonadversarial." Dissent at 826. This characterization belies human experience and our case law. See Harris , 152 Wash.2d at 488, 99 P.3d 872. In recognition of both the inherent conflict and the quasi-fiduciary relationship between the parties, the information obligated to be provided by the insured when seeking PIP benefits is presumptively confidential. E.g., id. at 490, 99 P.3d 872. It is often the insurer who will assert work product privilege against an adversary in litigation or the adversary's liability carrier. E.g., id. at 491-92, 99 P.3d 872. This was the case in Harris, where the insurer asserted the privilege as the insured's representative. Id. Here, of course, Diaz asserted the privilege directly, and the reasoning in Harris supported her doing so.

      The dissent contends the PIP form "was not important to the issue before the jury." Dissent at 827. The importance of the PIP form cannot be understated because it went to the issue of liability, which was the central issue in this case. It is unclear how much weight the jury gave to the PIP form in coming to its determination that Prieto was not negligent. See Driggs, 193 Wash. App. at 903, 371 P.3d 61 ("When the reviewing court is unable to know what value the jury placed on the improperly admitted evidence, a new trial is necessary." (citing Thomas v. French, 99 Wash.2d 95, 105, 659 P.2d 1097 (1983) )).

      For the sake of consistency, we follow the majority's lead in referring to the respondent as Diaz and the petitioner driver, Consuelo Prieto Mariscal, as Prieto.

      The majority cites Driggs v. Howlett, 193 Wash. App. 875, 903, 371 P.3d 61 (2016), for the proposition that a new trial is required anytime a reviewing court is unable to determine what value a jury may have placed on improperly admitted evidence. Majority at 824-25 n.4. But the Driggs court derived this rule from cases involving hearsay evidence that should have been admitted only for a limited purpose. This rule has no applicability here.


author: /s/ Fairhurst, C.J. CHIEF JUSTICE

text:
    Daryl FERGUSON and Julie Ferguson, Petitioners, v. GREEN TREE SERVICING, LLC et al., Respondents.
    No. 96790-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The Respondents' request for attorney fees is also denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    ADA MOTORS, INC., dba Burien Toyota, Petitioners, v. David L. BUTLER, et al., Respondents.
    No. 96800-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Darcy Dean RACUS, Petitioner.
    No. 96820-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    EVERETT HANGAR, LLC, Respondent, v. KILO 6 OWNERS ASSOCIATION, et al., Petitioners.
    No. 96898-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    CITY OF KIRKLAND, Respondent, v. RITE AID CORPORATION, et al., Petitioners.
    No. 96901-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Cameron F. PATTERSON, Petitioner.
    No. 96915-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, June 5, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its June 4, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE