State ex rel. O'Connell v. Dubuque

• Decision Date: 05 May 1966
• Docket Number: No. 38557,38557
• Citation: 413 P.2d 972,68 Wn.2d 553
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the relation of John J. O'CONNELL, Attorney General, Respondent, v. Stanley DUBUQUE, Auditor of Snohomish County, Washinton, et al., Appelants, Reid E. Hale and Edward J. Lehan, Appellants-Intervenors.

Page 553

68 Wn.2d 553

413 P.2d 972

The STATE of Washington on the relation of John J O'CONNELL, Attorney General, Respondent, v. Stanley DUBUQUE, Auditor of Snohomish County, Washinton, et al., Appelants Reid E. Hale and Edward J. Lehan, Appellants-Intervenors.

No. 38557.

Supreme Court of Washington, En Banc.

May 5, 1966.

Paul P. Ashley, William H. Ellis, Jr., Seattle, for Dubuque.

Parker & Borawick, M. L. Borawick, Midway, for Reid E. Hale, intervenor.

Edward J. Lehan, Spokane, for intervenors.

John J. O'Connell, Atty. Gen., Harold T. Hartinger, J. Richard Duggan, Asst. Attys. Gen., Olympia, for respondent.

HALE, Judge.

A curious fact of life in our democratic country is the heavy quantum of criticism and derision reserved by the people for their most representative institution, the legislature. Small wonder, then, that, when the 39th Session of the Washington State Legislature, having finished the monumental task of redistricting the state for the next general election, increased salaries for all representatives and new senators of the 40th Session from $100 to $300 per month, the enactment drew caustic comment from numerous sources and led to this suit to ascertain whether members of the 39th Legislature thereby forfeited their right to stand for reelection under the state constitution.

The 39th Session of the Legislature of the State of Washington, in Extraordinary Session, enacted Laws of 1965, Ex.Sess., ch. 127, § 4, increasing the annual salaries of all legislators effective at the beginning of the term of office next following re-election. Section 5, noting possible constitutional ramifications, specifically refers to art. 2, §§ 13, 25; art. 4, § 13; and art. 28 of the state constitution and makes the act effective at the earliest time allowable under the constitution. ¹ The enactment was signed into law by the Governor on April 8, 1965.

May 4, 1965, to initiate a constitutional test of this statute, the House and Senate adopted Senate Concurrent Resolution No. 26, reciting therein a number of declarations of fact which, in paraphrase, include Inter alia:

1. A substantial number of members of the present legislature have a firm intention of filing for re-election to the legislature in July, 1966, for new terms commencing in January, 1967.

2. A majority of members of each house are in doubt whether the salary increase renders the entire membership ineligible for (a) the increased salary, or (b) re-election, or (c) both.

3. Unless these issues of eligibility for re-election and the amount of salary for the newly re-elected legislators are definitively adjudicated in advance of the July, 1966, period for filing declarations of candidacy for the September primary election, great confusion and uncertainty will, to the detriment of all of the people, frustrate and thwart the orderly process of election.

The resolution concluded by requesting the Attorney General to take such action on behalf of the legislature as he deemed advisable for the purpose of obtaining answers to and resolution of the constitutional issues raised by the foregoing facts and events.

Thereupon, the Attorney General of the State of Washington, pursuant to Senate Concurrent Resolution No. 26, brought this suit for a declaratory judgment in the Superior Court for Thurston County, naming as parties defendant fourteen county auditors and their respective prosecuting attorneys, the Secretary of State, and Mr. Robert I. Tenney as an elector and taxpayer of this state, who all gave notice of appearance and designated counsel of record. Further, Reid Hale, a citizen, elector and taxpayer residing in King County, appeared by counsel and filed his answer in intervention; and Edward J. Lehan, a citizen, elector and taxpayer and a member of the bar residing in Spokane County, was, on his application, named as an additional party defendant and subsequently allowed to change his status to that of intervenor.

In addition to the legislative declarations of facts set forth in the resolution, the Attorney General alleged further basis for jurisdiction: to determine in what amount the fee for filing declarations of candidacy for nomination to the legislature shall be collected by county auditors and the Secretary of State for the primary elections of September, 1966, and primary elections thereafter. ² Filing fees are fixed at 1 per cent of the annual salary of the office to which the candidate seeks nomination.

From a summary judgment declaring in effect that (a) no member of the 39th Legislature is disqualified from seeking re-election by reason of the salary increase; (b) the increased compensation to $3,600 per annum shall take effect January 9, 1967, for all legislators whose terms commence on that date and on the second Monday in January 1969, for re-elected holdover Senators of the 40th Session whose new terms commence on this latter date; and (c) the filing fee to be paid by all candidates for the legislature and collected by the county auditors or Secretary of State for nomination to any term of office commencing on or after January 9, 1967, shall be $36, defendants and intervenors bring this appeal.

Appellants attack the judgment on a wide front, first urging a fatal jurisdictional deficiency in subject matter, contending that neither the pleadings nor facts create a justiciable controversy cognizable under the Declaratory Judgments Act (RCW 7.24) but rather call for a mere advisory opinion. They contend next that the courts are without jurisdiction to consider and rule upon the eligibility of members of the House and Senate because art. 2, § 8, of the Washington State Constitution, makes each house the 'judge of the election, returns and qualifications of its own members.' And, finally, if it be established that the courts do have jurisdiction of the cause and parties, appellants advocate, as a bar to the re-election of members of the 39th Legislature, art. 2, § 13, of the state constitution, which says that no member of the legislature shall be elected to any civil office in the state the emoluments of which have been increased during the legislator's term.

Do the pleadings and facts initiate a justiciable controversy under the Declaratory Judgments Art. R.C.W. 7.24.020? The statute reads, in pertinent part:

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.

Although neither the constitution, nor RCW 7.24 et seq., nor the court's inherent duty require the Supreme Court to render advisory opinions to the legislature, even on a direct request therefor, all courts should carefully consider legislative declarations of facts upon which a claimed controversy exists. The courts, without being bound thereby, should and do accord great respect to the official declarations of that constitutional body, possessed as it is of the sovereign legislative power, that circumstances exist so genuinely affecting the rights of citizens and members of the legislature as to require in the public interest a decision of the supreme court of the state. Although we are not bound by the recitals set forth in the legislative request, we will not ignore the legislature's assertions of fact upon which the controversy is said to depend.

What are the principal elements of a justiciable controversy as contemplated by the Uniform Declaratory Judgments Act, RCW 7.24? First, a justiciable controversy requires parties having existing and genuine, as distinguished from theoretical, rights or interests. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion. Third, it must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities be of such great and overriding public moment as to constitute the legal equivalent of all of them. Finally, the proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues. Any controversy lacking these elements becomes an exercise in academics and is not properly before the courts for solution. The decisions of this court, when considered seriatim, recognize and apply this definition. Hubbard v. Medical Ser. Corp., 59 Wash.2d 449, 367 P.2d 1003 (1962); State ex rel. Ruoff v. Rosellini, 55 Wash.2d 554, 348 P.2d 971 (1960); Huntamer v. Coe, 40 Wash.2d 767, 246 P.2d 489 (1952); Adams v. City of Walla Walla, 196 Wash. 268, 82 P.2d 584 (1938); Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 80 P.2d 403 (1938); Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345 (1937).

Senate Concurrent Resolution No. 26, declaring that a substantial number of legislators of the 39th Session intend to file for re-election in July, 1966, for terms commencing in January, 1967--an assertion of fact supported inexorably by history of this commonwealth since statehood--makes of the legislators real parties in interest having actual rights to be determined. All electors, citizens, and public officials having to do with elections, are genuinely concerned with the amount of and from whom filing fees for declarations of candidacy shall be collected into the public treasury and what salary shall be paid to newly elected members of the 40th Legislature. ³ And, too, citizens who may be candidates for nomination to the legislature or electors voting at the next primary election have an authentic concern in learning whether...