Brimmer v. Thomson

• Decision Date: 25 April 1974
• Docket Number: No. 4385,4385
• Citation: 521 P.2d 574
• Parties: Clarence A. BRIMMER, as Attorney General of Wyoming, Appellant (Plaintiff below), v. Thyra THOMSON, as Secretary of State, et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 574

521 P.2d 574

Clarence A. BRIMMER, as Attorney General of Wyoming, Appellant (Plaintiff below), v. Thyra THOMSON, as Secretary of State, et al., Appellees (Defendants below).

No. 4385.

Supreme Court of Wyoming.

April 25, 1974.

Clarence A. Brimmer, Atty. Gen., Sterling A. Case, Deputy Atty. Gen., William M. Sutton, Special Asst. Atty. Gen., Cheyenne, for appellant.

Ellen Crowley, Cheyenne, Rex O. Arney and Tom C. Toner, of Redle, Yonkee & Arney, Sheridan, Robert R. Rose, Jr., Casper, for appellees.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This is a case which seeks a determination of the question whether an incumbent State Senator whose term does not expire until the first Monday in January 1977 is prohibited or ineligible to seek and hold the office of Governor by virtue of § 8, Art. 3, of the Wyoming Constitution.

On March 13, 1974, the office of the Attorney General issued an official and published opinion over the signature of Sterling A. Case, Deputy Attorney General, which opinion denies or places in serious question the right of a State Senator who is serving a full term to become a candidate for another elective office during the period of his term. ¹ Thereafter Clarence A. Brimmer, as Attorney General of Wyoming, filed his complaint seeking a declaratory judgment and that the court declare the named defendants Wallop, Jones, and Leimback, alleging they proposed to run for the office of Governor, were eligible to become candidates, although their terms will not expire until the first Monday in January 1977. In response thereto defendants Leimback, Wallop, and Jones filed answers seeking the same relief and motions for summary judgment.

Defendant Leimback affirmatively alleges this opinion casts doubt upon his qualifications to run for Governor and the duty of the Secretary of State as chief election officer to follow the Attorney General's opinion and to act thereon, and suggests the probability that he would not be permitted to make available his candidacy in face of this opinion or if nominated and elected would not be allowed to take his oath.

Wallop, in addition, filed a counterclaim, alleging it was his intention to file for the office of Governor in the Republican primary, alleging further there is a dispute between himself and the Attorney General as to his eligibility to be a candidate for such office.

Plaintiff and counter-defendant admitted the material parts of Wallop's counterclaim and the issuance of the opinion by Case.

Thyra Thomson, as Secretary of State, filed a motion to dismiss and answer in which motion to dismiss she alleged she was willing and able to comply with any judgment herein, and in her answer admitted the execution of the opinion above referred to and that by virtue of § 9-125, W.S.1957, the Attorney General was the legal advisor in her official duties and that an uncertain condition had been created by virtue of this opinion.

The trial court held that Thyra Thomson, as Secretary of State, was not a proper party to the suit and that a justiciable controversy was before the court and certified certain constitutional questions, which will be hereinafter set out, to this court for disposal.

Before disposition can be made or consideration given to the question of the defendants' eligibility to run for State office we must consider the question of whether a justiciable issue or controversy is framed by this action and careful examination must be made of this record because of our recognition of the rule that a justiciable controversy must exist before a court can proceed to grant relief under our statute, Anderson v. Wyoming Development Co., 60 Wyo. 417, 154 P.2d 318, 336; Holly Sugar Corporation v. Fritzler, 42 Wyo. 446, 296 P. 206. It may be observed from the posture of this case that the plaintiff, as Attorney General, cannot escape the consequences or effect of an official published legal opinion from his office by the Deputy Attorney General without its withdrawal or reversal nor the consequences of his pleading in his answer to Wallop's counterclaim. Although the prayer of said complaint seeks a declaration in favor of these defendants who desire to be candidates, the matter of the controversy and adversity is presented by the attachment of Exhibit A, a copy of the opinion, to said complaint and his pleading admission directed at Wallop's counterclaim. These defendants, particularly Wallop, cannot be deprived of their right to assert a controversy by such equivocal position. It is conceded that all of the defendants have the proper qualifications for such office unless they be ineligible by virtue of the constitutional provision.

In consideration of the question whether this is a proper matter for resolution under the Uniform Declaratory Judgments Act, §§ 1-1049-1-1064, W.S.1957, 1973 Cum.Supp., it may be observed this is a proper vehicle to determine rights or status (§ 1-1051), that its application is discretionary (§ 1-1056), that it is remedial, and that it is to be liberally construed and administered (§ 1-1062).

'* * * Begrudging availability of the declaratory vehicle is inconsistent with the Act's expressed remedial tenor directed to the elimination of uncertainty and insecurity and the settlement of controversy. * * *' Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 497 P.2d 534, 538.

It is apparent from what has been said that a controversy does exist. Our only concern, and the question to which careful consideration must be given is, Is there such dispute which could serve as the basis of a justiciable issue?

A dispute may be a 'friendly' one where parties may have agreed to submit a question to courts for determination and this is in and of itself no valid objection to the rendition of a declaratory judgment, International Longshoremen's Association, AFL-CIO, v. Seatrain Lines, Inc., 2 Cir., 326 F.2d 916, 918-919, if the basic elements necessary as the basis of a declaratory judgment action are present and if the same is sustainable of judicial determination and adjudication of a present right.

The case of State ex rel. Miller v. State Board of Education, 56 Idaho 210, 52 P.2d 141, 143, is illustrative of a situation wherein both parties took the same position in urging the validity of a statute and the correctness of the trial court's judgment. Relief was granted therein. No one raised this question in that matter and both parties sought a review. The court in that connection said:

'* * * Notwithstanding the fact that no one raises the question of procedure here, and both parties are seeking a review of the case in this court, we feel constrained to announce, as a warning to future litigants, that the assumption of jurisdiction in this case shall not be taken as a precedent for future cases. It is only what seems to be the public importance of the matters involved and the exigencies of the situation that have induced us to consider this appeal.'

In the case of Whelan v. New Jersey Power & Light Company, 45 N.J. 237, 212 A.2d 136, 139, which was an action for declaratory judgment as to the validity of a contract between the city and the light company, the lower court having held the contract invalid, both parties contended on appeal that the contract should be upheld and alleged only that the mayor was troubled by doubts raised by the bond counsel and that purchasers of the bonds would require the opinion of such counsel, who was unwilling to risk the issuance of one. To establish an adverse position a member of the firm of the bond counsel purchased $5000 worth of these bonds and used that interest as a basis for his intervention. This was criticized by the court but the court did assume such jurisdiction, being satisfied that relief should have been granted, and despite the fact that the principal parties believed the contract valid still held that the controversy was real and not hypothetical because of the bond counsel's doubt.

A rather clear statement of the necessary elements of a justiciable controversy under the Uniform Declaratory Judgments Act appears in the case of Sorenson v. City of Bellingham, 80 Wash.2d 547, 496 P.2d 512, 517, wherein it is said:

'* * * 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.' (Emphasis supplied.)

In declaratory judgment actions there is a well recognized exception that the rule requiring the existence of justiciable controversies is not followed or is relaxed in matters of great public interest or importance, Diversified Industries Development Corporation v. Ripley, 82 Wash.2d 811, 514 P.2d 137, 139, and cases cited under footnote 2. This exception is also recognized in 1 Anderson, Actions for Declaratory Judgments, § 63, p. 126 (2d Ed.). ²

The question of great public importance rests with this court, Kellner v. District Court In and For City and County of Denver, 127 Colo. 320, 256...