McCormick v. Okanogan County

• Decision Date: 18 May 1978
• Docket Number: No. 44778,44778
• Citation: 90 Wn.2d 71,578 P.2d 1303
• Parties: Jeremiah M. McCORMICK, Prosecuting Attorney for Okanogan County, Appellant, v. OKANOGAN COUNTY, Respondent.
• Court: Washington Supreme Court

Page 71

90 Wn.2d 71

578 P.2d 1303

Jeremiah M. McCORMICK, Prosecuting Attorney for Okanogan

County, Appellant, v. OKANOGAN COUNTY, Respondent.

No. 44778.

Supreme Court of Washington,En Banc.

May 18, 1978.

Orvin H. Messegee, William S. Howard, Seattle, for appellant.

John Gavin, Joel Smith, Yakima, Collins & Hansen, Nels A. Hansen, Ephrata, for respondent.

ROSELLINI, Justice.

This action was begun with an application for an alternative writ of prohibition directed to the commissioners and auditor of Okanogan County, to prevent their taking any steps to call an election for the recall of the appellant as prosecuting attorney. Certain irregularities in the filing of recall petitions were alleged.

The Superior Court found inter alia that, while the petitions submitted to the auditor were not accompanied by a sworn certification (required under RCW 29.82.070), that defect was cured by the treasurer of the recall campaign when she filed an affidavit 2 weeks later. It further found that the canvassing of the votes less than 5 days after the affidavit was filed did not prejudice the appellant, that he had sufficient notice of the canvass, and that to order a recanvass would require a useless act, the correctness of the count not being questioned.

A motion filed by the appellant for authority to conduct discovery proceedings against the recall petitioners was denied, and attorney fees were awarded to the proponents for having to defend against this motion.

After denial of the writ, an election was held and the appellant was recalled. The propriety of the election procedure has not been questioned.

It appears that on January 6, 1977, the recall committee delivered to the county auditor signed petitions seeking the recall of the appellant. Accompanying these petitions were schedules which showed the names of the contributors to the recall campaign fund together with the post office addresses of the contributors and amounts contributed by each. ¹ The petitions also contained an itemized statement of the funds disbursed and a statement setting forth the total amount of money collected, expended and remaining in the fund. At about the same time a "list of solicitors" was also filed with the auditor.

While the schedules filed by the treasurer of the committee, Frances Lovell, contained her certification that the information contained in the cover letter and all attached documents was true and correct to the best of her knowledge and was based on records she had in her possession, the certification was not verified. They were nevertheless accepted by the auditor.

The next day the auditor advised the appellant that these petitions had been filed and that he would be notified of the date of canvassing, so that he could have an observer present if he so desired. On January 10, 1977, the appellant advised the auditor that he intended to challenge the petitions in court, and that he planned to attend the canvassing.

On January 17, 1977, the auditor informed the appellant that the canvassing would take place on January 19. On that same day the appellant filed this proceeding in Superior Court, alleging as grounds for the writ that the requirements of RCW 29.82.070 had not been met.

On January 19, an affidavit was filed with the auditor, wherein Frances Lovell verified that each of the documents theretofore filed by her and by Wally Lauterbach (another proponent) containing the statements and reports of persons, corporations, and organizations who had contributed or aided in the preparation, circulation and filing of the petitions, and the statement of expenditures were true and correct to the best of her knowledge and were based on the records which she had in her possession as treasurer of the committee.

The appellant elected not to attend the canvassing or to have a representative present. The correctness of the canvass was not challenged in the superior court proceeding, upon which a hearing was held on February 2, 1977, terminating in the court's refusing to stay the election.

The appellant first contends that the verification of January 19 was insufficient because it did not specify which persons had aided in the preparation of the charge.

The right of the people to recall their elected officials is reserved in Const. art. 1, §§ 33, 34 (amendment 8):

§ 33 Recall of Elective Officers. Every elective public officer of the state of Washington expect (except) judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

§ 34 Same. The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive power of lawmaking nor in any way limit the initiative and referendum powers reserved by the people. . . .

In State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972), we observed that our constitution establishes a very broad right of the electorate to recall elective public officials. The challenge in that case was to the sufficiency of charges set forth in a recall petition.

The rules which guide the courts in examining the sufficiency of such charges, which are set forth there, exemplify the principle that the judiciary must exercise restraint in interfering with the elective process which is reserved to the people in the state constitution.

Our cases in which we have held that an election will not be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election also illustrate that principle. Among them are State ex rel. Dore v. Superior Court, 171 Wash. 423, 18 P.2d 51 (1933) (holding an election notice sufficient even though it contained an inaccurate description of the office to be filled); School Dist. 81 v. Taxpayers, 37 Wash.2d 669, 225 P.2d 1063 (1950) (holding that election notice requirements are not mandatory); Vickers v. Schultz, 195 Wash. 651, 81 P.2d 808 (1938) (holding that the failure to post notice of an election, as required by statute, would not vitiate the election where it was shown that the purpose of the notice was served by the wide publicity given the election); Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059 (1893) (holding that an election would not be defeated by such irregularities as posting notice 26 days rather than the 30 days required by statute); Rands v. Clarke County, 79 Wash. 152, 139 P. 1090 (1914) (holding that failure to post notice did not render an election invalid and citing a number of cases which had previously held that notice requirements are directory rather than mandatory, unless the legislature has specifically provided that failure to post notice will invalidate the election); and Murphy v. Spokane, 64 Wash. 681, 117 P. 476 (1911) (holding that an election was not invalidated by the failure of the election officers to observe or comply with the statutory requirements that a certain number of election officers be selected and qualified in a specified manner, that they be present at all times, that they take an oath of office, or that the polls be opened on time and kept open during the time prescribed by law).

In Murphy v. Spokane, supra at 684, 117 P. at 478, we quoted with approval the statement of the rule found in McCrary on Elections § 225:

"If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits or affects the result of the election, or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature. But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election."

And in Knowles v. Holly, 82 Wash.2d 694, 699, 513 P.2d 18 (1973), we reaffirmed the statement found in State ex rel. Orr v. Fawcett, 17 Wash. 188, 49 P. 346 (1897), that the elective process though a constitutional privilege and right, must be exercised under such reasonable legislative restrictions as will prevent intimidation, bribery, and fraud, and secure an honest, untrammeled, and genuine expression of public sentiment. It is also true, however, that, in the absence of constitutional inhibition, all statutes tending to limit the citizen in the exercise of the right of suffrage should be liberally construed in his favor. . . .

It will be observed that the constitutional provisions do not require the filing of a verified statement of all who have contributed to or aided in the preparation of the charge...