Kitsap County Republican Central Committee v. Huff

• Decision Date: 04 December 1980
• Docket Number: No. 47341-2,47341-2
• Citation: 620 P.2d 986,94 Wn.2d 802
• Parties: KITSAP COUNTY REPUBLICAN CENTRAL COMMITTEE and Hal Reynolds, Respondents, v. Sherril HUFF, Auditor of Kitsap County, Appellant.
• Court: Washington Supreme Court

Page 802

94 Wn.2d 802

620 P.2d 986

KITSAP COUNTY REPUBLICAN CENTRAL COMMITTEE and Hal Reynolds Respondents, v. Sherril HUFF, Auditor of Kitsap County, Appellant.

No. 47341-2.

Supreme Court of Washington, En Banc.

Dec. 4, 1980.

C. Dan Clem, Ronald A. Franz, Port Orchard, for appellant.

Davis, Wright, Todd, Riese & Jones, Edward Lange, Seattle, for respondents.

WILLIAMS, Justice.

During the week of July 28, 1980, Gordon Walgren filed for the Democratic nomination for state senator from the 23rd legislative district. On September 16, 1980, he defeated his opposition and won the right to appear on the ballot as the Democratic nominee at the general election, which was scheduled to be held November 4, 1980.

During the late summer and early fall, Walgren was undergoing a trial in the United States District Court for the Western District of Washington involving several counts of felonies. On October 3, 1980, a jury found Walgren guilty of three counts. Sentencing has been set for a date after the general election.

We were assured at oral argument that Walgren had filed several post-trial motions: arrest of judgment, judgment notwithstanding the verdict, and new trial. On October 6 1980, the Kitsap County Democratic Central Committee met and designated Billie Eder as the Democratic candidate for the 23rd legislative district state senator. Eder's name was submitted to appellant Kitsap County Auditor Sherril Huff, who initiated action to place that name on the ballot for the November 4, 1980 general election.

On October 15, 1980, respondents Kitsap County Republican Central Committee, Hal Reynolds, its chairman, and a Kitsap County voter (hereafter Republicans) filed the present action against County Auditor Huff. The complaint sought injunctive relief against Huff's substituting any name for Walgren's name on the ballot until he is formally convicted and thus disqualified from running for office. It also sought a declaratory judgment that Walgren would not be disqualified until the judgment and sentence had been entered in the federal case.

A hearing was held on Friday, October 17, 1980, before visiting judge Frank D. Howard. Based on various affidavits and memoranda submitted by the parties, Judge Howard entered an order agreeing with the Republicans' position. He restrained Huff from distributing any absentee ballots or preparing or distributing any regular ballots for the November 4, 1980 election with any name other than Walgren's as the 23rd legislative district Democratic nominee for state senate.

Auditor Huff sought immediate review by this court advising the court that ballot printing schedules would require a decision at the earliest possible time. Accordingly, we heard oral argument on Tuesday, October 21, 1980; on Wednesday, October 22, 1980, we entered an order affirming the judgment of Judge Howard and ordering Huff to place the name of Gordon Walgren on the ballot for the November 4, 1980 general election.

At the outset we wish to emphasize several points on which the parties appear to agree. First, it is clear that any attempt by Walgren to voluntarily withdraw from the election can have no legal effect. The only statutory provision permitting withdrawal is RCW 29.18.030, which provides in part that

(a)ny candidate may in writing withdraw his declaration at any time to and including the first Wednesday after the last day allowed for filing declarations of candidacy.

This period has long since passed. Second, the authority granted to election officials to place a new name upon the ballot arises only when the candidate or nominee is dead or disqualified. RCW 29.18.160 states, in part:

A vacancy caused by the death or disqualification of any candidate or nominee of a major or minor political party may be filled at any time up to and including the day prior to the election for that position.

Thus, the question arises whether Walgren has been "disqualified" as that term is used in the statute.

Third, a person is qualified to be a state legislator if he or she is a United States citizen and a qualified voter in the district. Const. art. 2, § 7. Walgren is a citizen and will likewise remain a qualified voter unless he is convicted of an "infamous crime", i. e., a crime punishable by death or imprisonment in the penitentiary. Const. art. 6, § 3; RCW 29.01.080. In addition, RCW 9.92.120 provides that

(t)he conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state.

(Italics ours.) Walgren meets all of the constitutional requirements for eligibility to the legislature. If he is convicted of the charges now pending against him, he will be disqualified as a voter and thus disqualified as a legislator under Const. art. 6, § 3, RCW 29.01.080, and RCW 9.92.120. The question to be decided, therefore, is whether Walgren has been "convicted" when a jury verdict has been returned against him, but the trial court's action on post-verdict motions and entry of judgment remain.

There is no case in Washington which clearly decides when a "conviction" occurs for the purpose of disqualifying a person from holding public office. Certainly this court has held that the word "conviction" may have different meanings in different situations. For example, criminal law consequences ordinarily do not flow from a jury verdict standing by itself; in order for a defendant to be sentenced or to have the right to appeal, there must be formal entry of a judgment. Matsen v. Kaiser, 74 Wash.2d 231, 234, 443 P.2d 843 (1968); RAP 2.2(a)(1); RAP 5.2(a). On the other hand, a jury verdict alone does qualify as a prior conviction for the purpose of impeaching a witness. State v. Herman, 93 Wash.2d 590, 611 P.2d 748 (1980). In fact, this court has said:

Thus, the word conviction in criminal statutes has more than one meaning; it may mean a finding of guilt in one situation-as in a verdict or plea of guilty-or in other circumstances and in a different context may mean a formal finding or declaration of guilt-as in a judgment and sentence. State ex rel. Brown v. Superior Court, 79 Wash. 570, 140 Pac. 555 (1914).

Matsen, 74 Wash.2d at 236, 443 P.2d 843.

The Republicans call our attention to several Washington cases which they claim support their view that there is no conviction for the purpose of disqualification from public office until there has been formal entry of judgment and sentence. However, none of those cases addresses the central problem of this case. For example, in In re Simmons, 65 Wash.2d 88, 395 P.2d 1013 (1964), the court was not deciding when the conviction occurred. Rather, the issue went to the merits of Simmons' claim that he should not be disbarred.

Similarly, in State ex rel. Zempel v. Twitchell, 59 Wash.2d 419, 367 P.2d 985 (1962), the sheriff of Snohomish County sought to avoid a decree arising out of a quo warranto proceeding to oust him from office. We upheld the ouster, making it clear that the office had become vacant and forfeit upon conviction. The court was not presented with the question of when conviction occurred. Rather, the petitioner in that case merely challenged the authority of the county commissioners to declare his office vacated and also raised the issue whether he had in fact violated his official oath. Twitchell, at 422-23, 367 P.2d 985.

In State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939), the issue was whether the official had actually been guilty of a crime for which he could be disqualified, not whether the date of conviction was in fact the day of entry of judgment and sentence. In State ex rel. Guthrie v. Chapman, 187 Wash. 327, 60 P.2d 245 (1936), the actual issue was the reinstatement to office after reversal of the conviction on appeal.

Matsen is perhaps the most helpful Washington case in determining when a conviction has occurred. The Klickitat County Sheriff had resigned from office in 1961. In 1963, Sheriff Kaiser entered a plea of guilty to the felony of misappropriating public records. The trial court's order accepting the plea sentenced Kaiser to 6 months' probation, but further provided that if he completed the probationary sentence successfully, he could petition to withdraw his guilty plea and the court might then dismiss the information. Such dismissal would release him "from all penalties and disabilities resulting from (the) offense." Matsen, at 233, 443 P.2d 843. Kaiser was successful in obtaining a dismissal, and in 1966 he was again elected sheriff. A voter then brought a suit claiming that the sheriff had been...