615 P.2d 452 (Wash. 1980), 44673, Wyman v. Wallace

• Judge: HICKS, Justice (dissenting). WRIGHT, ROSELLINI and HICKS, JJ., concur.
• Parties: Thomas WYMAN, Petitioner, v. Donald WALLACE and Jane Doe Wallace, his wife, Respondents.
• Docket Number: 44673.
• Date: 31 July 1980
• Court: Washington Supreme Court
• Citation: 94 Wn.2d 99,615 P.2d 452

Page 452

615 P.2d 452 (Wash. 1980)

94 Wn.2d 99

Thomas WYMAN, Petitioner,

v.

Donald WALLACE and Jane Doe Wallace, his wife, Respondents.

No. 44673.

Supreme Court of Washington, En Banc.

July 31, 1980

[94 Wn.2d 100]

Page 453

John Marvin Jonsson, Seattle, for petitioner.

Jay Nuxoll, Bellevue, for respondents.

UTTER, Chief Justice.

An opinion in this case was reported in Wyman v. Wallace, 91 Wash.2d 317, 588 P.2d 1133 (1979). We granted reconsideration, and now vacate our earlier opinion and affirm the Court of Appeals' decision abolishing actions for alienation of a spouse's affections in this state.

Plaintiff Thomas Wyman obtained a judgment against defendant Donald Wallace for alienation of the affections of Mrs. Michele Wyman. Defendant Wallace appealed, and the Court of Appeals in a per curiam decision held that the cause of action for alienation of a spouse's affections should be abolished, and ordered the action in this case dismissed with prejudice. Wyman v. Wallace, 15 Wash.App. 395, 549 P.2d 71 (1976). Plaintiff Wallace then petitioned for review by this court, claiming that the action for alienation of a spouse's affections should not be eliminated judicially, and should continue to exist until it has been abolished by the legislature.

The action for alienation of a spouse's affections is a judicially created doctrine in this state. The action existed at common law, and was adopted into the jurisprudence of this state. See, e. g., Beach v. Brown, 20 Wash. 266, 55 P. 46 [94 Wn.2d 101] (1898). The legislature of this state has not specifically provided for an action for alienation of affections.

No doubt has ever been expressed regarding the courts' power to abolish this judicially created action for alienation of a spouse's affections. Our original decision in this case recognized that "a rule of law which has its origins in the common law and which has not been specifically enacted by the legislature may be modified or abolished by the courts when such revision is mandated by changed conditions." Wyman v. Wallace, 91 Wash.2d at 318-19, 588 P.2d at 1134. See also Freehe v. Freehe, 81 Wash.2d 183, 189, 500 P.2d 771 (1972) (question of abolition of rule of interspousal tort immunity is properly a matter for the courts and need not await legislative action since "the rule is not one made or sanctioned by the legislature, but rather is one that depends for its origins and continued viability upon the common law"). Every jurisdiction that has thus far abolished the tort of alienation of a spouse's affections has done so legislatively. ¹ However, the mere fact that the legislatures in these other states abolished the cause of action Before the question of abolition was properly presented to the respective courts, [94 Wn.2d 102] does not mean that every state court must wait for the legislature to focus its attention on this subject. See, e. g., Doe v. Doe, 378 Mass. 202, 390 N.E.2d 730, 732-33 (1979) (recognizing that the state courts have the power to abolish the tort of alienation of affections); see also Bearbower v. Merry, 266 N.W.2d 128, 129, 134 (Iowa 1978) (recognizing that the question of abolition of the action for alienation of affections is a matter that can be decided by the state courts, and then holding that the action will continue to exist). In the instant case, the question

Page 454

of abolition of the action has been squarely presented to the courts of this state and, since the action was created judicially, the courts have the power to resolve this question.

Plaintiff Wyman urges, however, that the courts should decline to exercise this power in the present case because the trial court's decision was argued on appeal without any record of the trial court proceedings. He contends that the absence of any trial record leaves the appellate courts without any factual basis for deciding whether or not to continue the action for alienation of a spouse's affections. In making a policy judgment such as the continuation of the doctrine of alienation of affections, it is certainly preferable to have a fully developed trial record. Doe v. Doe, supra at 731. However, trial courts and appellate courts can take notice of "legislative facts" social, economic, and scientific facts that "simply supply premises in the process of legal reasoning." Houser v. State, 85 Wash.2d 803, 807, 540 P.2d 412 (1975); C. McCormick, Handbook of the Law of Evidence 759, 768-69 (2d ed. 1972). Under this doctrine, a court can take notice of scholarly works, scientific studies, and social facts. See C. McCormick, supra at 759, 768-69; see, e. g., Planned Parenthood v. Danforth, 428 U.S. 52, 71, 75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Houser v. State, supra 85 Wash. at 807-09, 540 P.2d 412. This legislative fact doctrine is expressly recognized by both the state and federal rules of evidence. In establishing strict requirements for judicial notice of "adjudicative facts," the state and federal rules [94 Wn.2d 103] carefully ensure that these requirements will not also restrict notice of "legislative facts." See ER 201(a), Comment; Fed.R.Evidence 201(a), Advisory Committee's note. As the commentaries to these rules explain, it is essential that courts have the unrestricted ability to employ judicially noticed "legislative facts" in formulating legal rules. Fed.R. Evidence 201(a), Advisory Committee's note; ER 201(a), Comment.

Judicial notice of legislative facts is frequently necessary when, as in the present case, a court is asked to decide on policy grounds whether to continue or eliminate a common law rule. ER 201(a), Comment; C. McCormick, supra at 759, 768-69. The application of the legislative fact doctrine in determining the parameters of a judicially created principle is illustrated by the United States Supreme Court's decisions concerning the common law rule that one spouse cannot testify against the other. In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the court reaffirmed the continuing viability of the privilege against adverse spousal testimony in the federal courts. The court in Hawkins concluded that the underlying policy of preserving marital harmony was reasonable and necessitated the continuation of the privilege against adverse spousal testimony. Hawkins, at 77-79, 79 S.Ct. 138-139. As commentators pointed out, the Hawkins decision rested upon the court's judicial notice of the "legislative fact" that adverse spousal testimony has the effect of disrupting marital harmony and alienating one spouse from the other. C. McCormick, supra at 759; Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 83 (R. Pound ed. 1964). Recently, the United States Supreme Court in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) modified its Hawkins rule so as to allow adverse spousal testimony if the witness spouse chooses to testify. The court in Trammel explained that the modern understanding of marriages amply demonstrates that the adverse spousal privilege does not further the [94 Wn.2d 104] underlying goal of preserving marital harmony. The Trammel court took notice of the social fact that "(w)hen one spouse is willing to testify against the other in a criminal proceeding whatever the motivation their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to...