Parker v. Wyman

• Decision Date: 06 December 2012
• Docket Number: No. 87823–4.,87823–4.
• Citation: 176 Wash.2d 212,289 P.3d 628
• Parties: Vicki Lee Anne PARKER and James S. Johnson, Appellants, v. Kim WYMAN, in her capacity as Thurston County Auditor, and Christine Schaller–Kradjan, Marie Clarke, and Victor Minjares, Respondents, and Marie C. Clarke, Appellant, v. Kim Wyman, Thurston County Auditor, and Christine Schaller–Kradjan, Candidate for Thurston County Superior Court, Position 2, Respondents.
• Court: Washington Supreme Court

176 Wash.2d 212

289 P.3d 628

Vicki Lee Anne PARKER and James S. Johnson, Appellants,

v.Kim WYMAN, in her capacity as Thurston County Auditor, and Christine Schaller–Kradjan, Marie Clarke, and Victor Minjares, Respondents,andMarie C. Clarke, Appellant,

v.Kim Wyman, Thurston County Auditor, and Christine Schaller–Kradjan, Candidate for Thurston County Superior Court, Position 2, Respondents.

No. 87823–4.

Supreme Court of Washington, En Banc.

Argued Oct. 10, 2012.

Decided Dec. 6, 2012.

David vs Klumpp, Shawn Timothy Newman, Attorney at Law, Olympia, WA, Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, WA, for Respondent.

Peter B. Gonick, Washington Attorney General's Office, Jeffrey Todd Even, Office of The Attorney General, Olympia, WA, Amicus Curiae on behalf of State of Washington.

MADSEN, C.J.

¶ 1 Vicki Parker, James Johnson, and Marie Clarke appealed directly to this court from an order of the Thurston County Superior Court denying them relief in an action challenging the candidacy of Christine Schaller for the office of judge of the Thurston County Superior Court. Appellants argue that Schaller is not statutorily eligible for the office because she does not reside in, and therefore is not a qualified elector of, Thurston County. We hold that Schaller is not required to reside in or be an elector of Thurston County to be eligible for the office. Accordingly, we affirm the superior court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Christine Schaller has been an appointed commissioner of the Thurston County Superior Court since 2005. Although she is not a resident of Thurston County, Schaller decided to run for one of the Thurston County judgeships that became open for election in 2012. Under the state constitution, a person is eligible for the office of superior court judge if he or she has been admitted to practice before the courts of record in this state. Wash. Const. art. IV, § 17. But a statute states that no person is qualified to hold an elective office within “any county” in this state unless that person is “an elector of such county.” RCW 42.04.020. Believing that the constitution states the only lawful qualification for the position of superior court judge, Schaller filed a petition for a writ of mandamus in this court asking the court to direct the secretary of state to ensure that the statutory elector requirement did not prevent the candidacy of those who were qualified under the constitution. The court denied Schaller's petition by commissioner's ruling, determining that mandamus relief was not appropriate in the circumstances.

¶ 3 In May 2012, Ms. Schaller filed a declaration of candidacy. Other candidates declaring for the office were James Johnson, Marie Clarke, and Victor Minjares. On May 29, Thurston County resident Vicki Parker filed a petition in Thurston County Superior Court seeking a declaration that Schaller is not eligible for the judgeship and an order directing Thurston County Auditor Kim Wyman to not place Schaller's name on the primary election ballot. Johnson moved to intervene. The superior court denied Johnson's motion to intervene and dismissed Parker's action as untimely.

¶ 4 The primary election proceeded on August 7, 2012, with Schaller receiving 48.56 percent of the vote and Johnson coming in second with 22.05 percent, as a result of which Schaller and Johnson advanced to the November general election. On August 22, 2012, Parker and Johnson filed a petition in Thurston County Superior Court pursuant to RCW 29A.68.011, seeking an order prohibiting Wyman from placing Schaller's name on the general election ballot. ^FN1 That same day Clarke also filed a petition under RCW 29A.68.011, seeking also writs of prohibition and mandamus.

¶ 5 A visiting judge heard the matter, and on August 31, 2012, the superior court issued a memorandum opinion and order denying relief, holding that in light of the exclusive qualification within the state constitution, RCW 42.04.020 does not apply to superior court judges and thus Schaller is eligible to run for Thurston County Superior Court judge. Parker and Johnson filed a notice of appeal directly to this court, and Clarke filed a separate notice of appeal. The court set the matter for expedited consideration.

¶ 6 Meanwhile, the general election proceeded, and Schaller received 66.5 percent of the vote.

ANALYSIS

1. Appealability

[1] ¶ 7 Preliminarily, respondents Schaller and Wyman raise the issue of whether the superior court's decision is appealable. All parties now agree that it is not, and we also agree. Appellants brought their actions pursuant to RCW 29A.68.011(3), which allows any supreme court justice or any court of appeals or superior court judge upon affidavit of an elector to issue an order preventing the wrongful placement of a name on the ballot.^FN2 An affidavit relating to the general election ballot must be filed in the appropriate court no later than three days after certification of the primary election returns, and the matter must be heard “and finally disposed of by the court” within five days after the filing. RCW 29A.68.011(6). Construing a predecessor statute containing the same operative language, this court held that a decision on a ballot challenge is not appealable. Hatfield v. Greco, 87 Wash.2d 780, 781, 557 P.2d 340 (1976); see also Kreidler v. Eikenberry, 111 Wash.2d 828, 834, 766 P.2d 438 (1989) (applying reasoning of Hatfield in holding that superior court's decision on review of initiative ballot title is not reviewable in light of statute making court's decision “final”). As we explained, the purpose of the statute is to obtain a speedy determination in order to settle the ballot in a reasonable time before the election. Hatfield, 87 Wash.2d at 782, 557 P.2d 340. Thus, the superior court's decision here is not appealable.

[2] ¶ 8 Appellants nonetheless urge us to exercise the court's inherent or constitutional power of review. See Wash. Const. art. IV, § 4 (authorizing writs necessary and proper to

the complete exercise of the court's appellate and revisory jurisdiction); Kreidler, 111 Wash.2d at 835, 766 P.2d 438 (legislature may not abridge the court's constitutional power to review lower court decisions by writ); Williams v. Seattle Sch. Dist. 1, 97 Wash.2d 215, 218, 643 P.2d 426 (1982) (constitutional right of judicial review exists notwithstanding statutory bar to review). We agree that we should review this matter. Precedent exists for this court's review by certiorari of superior court decisions on preelection ballot challenges. See State ex rel. Pennick v. Hall, 26 Wash.2d 172, 173 P.2d 153 (1946), overruled in part on other grounds by State ex rel. O'Connell v. Dubuque, 68 Wash.2d 553, 413 P.2d 972 (1966). And considerations of judicial economy support resolution of the merits now. As indicated, Schaller has won the general election. If this court were to decline to address the merits, the matter would inevitably reach the courts again by way of a postelection challenge to Schaller's eligibility to hold the office, which would raise precisely the same legal arguments. See RCW 29A.68.020(2) (authorizing postelection challenge on ground that person elected is not eligible for office). We also elect to reach the merits given the public importance and potentially recurring nature of the issue raised in this case. See Tacoma News, Inc. v. Cayce, 172 Wash.2d 58, 64, 256 P.3d 1179 (2011) (considerations governing whether to address moot issues).

2. Qualifications for Superior Court Judge

[3] ¶ 9 The Washington Constitution provides that “[n]o person shall be eligible to the office of judge of the supreme court, or judge of a superior court, unless he shall have been admitted to practice in the courts of record of this state, or of the Territory of Washington.” Wash. Const. art. IV, § 17. The constitution expresses no other qualification for the position of superior court judge. But RCW 42.04.020 provides [t]hat no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he or she be a citizen of the United States and state of Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision.

The issue as framed by the parties is whether this statute lawfully supplements the constitutional qualification of admission to practice in requiring superior court judges to be electors of the counties in which they are elected to their positions.^FN3

¶ 10 Respondents' argument that Schaller is qualified for a Thurston County judgeship despite her Pierce County residency rests on a principle that this court first recognized in In re Bartz, 47 Wash.2d 161, 287 P.2d 119 (1955): that “where the constitution has set forth qualifications for an office, either general or specific, in the absence of an express grant of power to the legislature, there is an implied prohibition against the imposition of additional qualifications by the legislature.” Id. at 164, 287 P.2d 119. Although we acknowledged this rule in Bartz and assumed for purposes of our analysis there that it was preferable to a rule that permits legislative supplementation of constitutional qualifications, we first expressly adopted the rule in Gerberding v. Munro, 134 Wash.2d 188, 949 P.2d 1366 (1998), where we held invalid an initiative setting terms limits for state legislative offices and some state executive offices. Id. at 210, 949 P.2d 1366. As indicated, the Washington Constitution articulates no qualification for superior court judge but admission to practice before the state courts of record. Wash. Const. art. IV, § 17. Relying on Gerberding, respondents reason that the legislature may not add to that qualification by requiring superior court judges to be electors of the counties in which they hold their positions. See Wallace v....