Fain v. Chapman

• Decision Date: 15 September 1977
• Docket Number: 45093,No. 45068,45068
• Citation: 569 P.2d 1135,89 Wn.2d 48
• Parties: Thomas H. FAIN, Petitioner, v. Bruce K. CHAPMAN, Respondent. The STATE of Washington on the relation of Jay NUXOLL, Appellant, v. Clint G. ELSOM, Manager of the Division of Records and Elections for King County, and Bruce K. Chapman, Secretary of State, as Chief Elections Officer of the State of Washington, Respondents.
• Court: Washington Supreme Court

Page 48

89 Wn.2d 48

569 P.2d 1135

Thomas H. FAIN, Petitioner, v. Bruce K. CHAPMAN, Respondent.

The STATE of Washington on the relation of Jay NUXOLL, Appellant, v. Clint G. ELSOM, Manager of the Division of Records and Elections for King County, and Bruce K. Chapman,

Secretary of State, as Chief Elections

Officer of the State of

Washington, Respondents.

No. 45068, 45093.

Supreme Court of Washington, En Banc.

Sept. 15, 1977.

Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Seattle, for petitioner.

Slade Gorton, Atty. Gen., Sullivan, Morrow & Longfelder, Seattle, Malachy Murphy, Deputy Atty. Gen., Olympia, for respondent.

UTTER, Associate Justice.

These consolidated cases arise from the passage of Laws of 1977, 1st Ex.Sess., ch. 311, creating ten new superior court judgeships, nine of which are to become effective on November 1, 1977, and one effective January 1, 1978. On July 20, 1977, the respondent Secretary of State, as chief election officer of the state of Washington, directed his office and appropriate county election officials to accept filings during the week of July 25-29, 1977, for the positions to be created as of November 1. It was respondent's intention to hold primary elections with regard to each of these positions on September 20, 1977, and to hold those general elections which might be required at the regularly scheduled general election on November 8, 1977.

Petitioner Thomas Fain, a citizen and taxpayer of the state of Washington who is entitled to vote in elections for state officers, commenced an original action in this court on August 10, 1977, challenging the validity of this election procedure. Fain v. Chapman, cause No. 45068. This suit, as an action against a state officer, is in the nature of prohibition and seeks relief by way of an order declaring that the judicial offices created by Laws of 1977, 1st Ex.Sess., ch. 311 are not subject to the primary and general elections to be held in September and November 1977 and an order restraining the respondent Secretary from conducting the scheduled elections.

In State ex rel. Nuxoll v. Elsom, cause No. 45093, the appellant, Jay Nuxoll, also a taxpayer and citizen of the state of Washington, commenced an action in King County Superior Court challenging the validity of the proposed election procedure. He sought relief by way of a writ of prohibition or an alternative writ of mandamus against the respondent Secretary and the respondent Clint G. Elsom, in his capacity as manager of the Division of Records and Elections for King County. The Superior Court denied both writs and appellant sought relief by direct appeal to this court.

The two cases were consolidated and set for accelerated hearing before this court, sitting en banc, on September 8, 1977. In view of the urgency of the issues raised, the court entered an order the same day, unanimously concluding that the judicial offices created by Laws of 1977, 1st Ex.Sess., ch. 311 are not subject to election in 1977 and ordering that no election for such offices be held. This opinion sets forth the court's reasons for its order.

The provisions of article 4, section 5 of the constitution provide the framework within which newly created judgeships must be filled. The applicable provision provides:

If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election . . .

Const. art. 4, § 5. The respondent Secretary of State, relying upon an opinion issued by the Attorney General (AGLO, No. 34, July 27, 1977), concluded that this provision must be applied literally and directed that filings be accepted in July and a primary election held in September, both prior to the effective date of the statute creating these positions, in order to facilitate the November election he felt mandated by the constitution. Petitioner and appellant have contended that this constitutional provision cannot be interpreted literally. They argue it must be understood to require election of judges to fill these positions at the next general election, which can be held in compliance with state statutes governing the time and manner of holding elections, following the existence of a vacancy. We hold petitioner and appellant have correctly interpreted the constitution and that the statute relied upon by them is constitutional. That statute precludes the holding of any elections with regard to these judgeships in 1977.

The first issue is at what point a "vacancy", as that term is utilized in the constitution, will occur in each of these newly created positions. Petitioner contends no "vacancy" will exist in the positions here at issue until the act creating them becomes effective. We agree. A statute speaks from its effective date and no action may be undertaken pursuant to it prior to that time. Yelle v. Kramer, 83 Wash.2d 464, 520 P.2d 927 (1974); Walker v. Lanning, 74 Wash. 253, 133 P. 462 (1913). In State ex rel. New Washington Oyster Co. v. Meakim, 34 Wash.2d 131, 140, 208 P.2d 628, 633 (1949), a case concerning the powers of a retired superior court judge, this court quoted with approval the following language:

"The word 'vacancy,' as applied to an office, has no technical meaning. An existing office without an incumbent is vacant. There is no basis for the distinction that it applies only to an office vacated by death, resignation, or otherwise."

(Italics ours.) These decisions indicate there can be no "vacancy" in these soon to be created positions until such time as the statute which gives them life becomes effective. The nine superior court judgeships here at issue will thus become vacant, for purposes of Const. art. 4, § 5, on November 1, 1977. See Laws of 1977, 1st Ex.Sess., ch. 311, § 6. ¹

All parties to this action agree that the "next succeeding general election" following the date at which these vacancies will arise is scheduled to take place November 8, 1977. See RCW 29.13.010; Brownlee v. Clark, 87 Wash.2d 478, 553 P.2d 1344 (1976). They argue, however, that an election may not be held for these positions at that election because of a provision of RCW 29.21.380(3), which provides:

A scheduled election shall be lapsed, the office deemed stricken from the ballot, no purported write-in votes counted, and no candidate certified as elected, when:

(3) In other elections for nonpartisan office a void in candidacy occurs or a vacancy occurs involving an unexpired term to be filled on or after the fourth Tuesday prior to an election.

(Italics ours.) If this statute is valid, it clearly would allow those persons appointed by the Governor when these vacancies occur to serve until the next general election which can be held in compliance with its provisions. That election will take place in November 1978. The history of the bill creating these positions makes it clear that the legislature chose the November 1st effective date with the assumption that RCW 29.21.380(3) would require such a result. See Fain v. Chapman, cause No. 45068, agreed statement of facts, exhibit C, p. 22-23. The Secretary of State insists that elections in November 1977 are a constitutional necessity, however, which may not be avoided through reliance upon this statute. Such an argument must rest upon the presumption that the pertinent section of RCW 29.21.380(3) is unconstitutional on the basis that it is beyond the power of the legislature to enact such a provision.

The state constitution must be treated as a limitation upon the general legislative power rather than a grant of specific powers to that branch of government. The legislature possesses all general legislative power not specifically or by fair inference precluded by the constitution. State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wash.2d 175, 492 P.2d 1012 (1972); Hoppe v. State, 78 Wash.2d 164, 469 P.2d 909 (1970); Yelle v. Bishop, 55 Wash.2d 286, 347 P.2d 1081 (1959); Walker v. Spokane, 62 Wash. 312, 113 P. 775 (1911). Consistent with this fundamental proposition of constitutional law, this court has previously held that the legislature possesses the power to enact specific laws concerning the election of judges and the time and manner of filling vacancies in such positions, when they arise, so long as those laws do not conflict with a specific restriction upon the legislative power found in the constitution itself.

Our decision in State ex rel. Sampson v. Superior Court, 71 Wash. 484, 128 P. 1054, Ann.Cas.1914C, 591, we think, renders it plain that the constitutional provision is not self-executing. It is for the legislature, and not the courts, to provide the notice for and the method of conducting elections, general or special. The only express limitation we see in the constitution is that such an election, as is here drawn in question, shall be held at the time of the general election. It is plain, we think, that some notice must be given, and we think it equally plain that it is for the legislature to prescribe the time and manner of giving such notice.

(Italics ours.) State ex rel. Ferguson v. Superior Court, 140 Wash. 636, 648, 250 P. 66, 70 (1926). See State ex rel. Rummens v. Superior Court, 160 Wash. 520, 524-526, 295 P. 730 (1931).

It is contended by respondents that if RCW 29.21.380(3) is applied not only to unanticipated vacancies occurring through resignation or death of an officeholder, but also to "anticipated" vacancies, such as are here at issue, it will violate the fundamental constitutional preference for election of judges by the people (see Const. art. 4, § 5) and violate restrictions placed upon the legislature by the forty-first amendment to the state constitution. ² We cannot agree. There is nothing in the cited provisions of the constitution restricting the power of the legislature to enact a statute such as this. ...