Pederson v. Moser

• Decision Date: 28 April 1983
• Docket Number: No. 49313-8,49313-8
• Parties: Roger E. PEDERSON, Appellant, v. C. Thomas MOSER, in his capacity as Prosecuting Attorney for Skagit County; Luella Henry, in her capacity as Auditor of Skagit County; and Richard C. Reitsma, Recall Petitioner, Respondents.
• Court: Washington Supreme Court

Page 456

99 Wn.2d 456

662 P.2d 866

Roger E. PEDERSON, Appellant, v. C. Thomas MOSER, in his capacity as Prosecuting Attorney for

Skagit County; Luella Henry, in her capacity as

Auditor of Skagit County; and Richard

C. Reitsma, Recall Petitioner,

Respondents.

No. 49313-8.

Supreme Court of Washington,

En Banc.

April 28, 1983.

Kennedy, Rice, Brewe & Tangen, Kenneth B. Rice, Everett, for appellant.

C. Thomas Moser, Skagit County Prosecutor, Mount Vernon, Patrick M. Hayden, Sedro Woolley, for respondents.

UTTER, Justice.

This was an action on several grounds to permanently enjoin or, in the alternative, stay a recall election. The trial court dismissed the action and appellant Roger E. Pederson sought review. We granted accelerated review so that the appeal could be heard before the date the election was scheduled to be held--March 8, 1983. After oral argument on February 28, we issued an order affirming the trial court's dismissal, with opinion to follow.

Respondent Richard C. Reitsma has filed several demands for the recall of Pederson, who is a port commissioner for the Port of Skagit County. The original Demand for Recall was filed on November 24, 1982. No action was taken on it, however, for on November 30 Reitsma filed an Amended Demand for Recall which corrected an erroneous date. On December 2, the county prosecutor, respondent D. Thomas Moser, found four of the five paragraphs of the Amended Demand for Recall to be legally sufficient.

On December 12, Pederson commenced this action, asserting among other claims that he had not been properly served with the Amended Demand for Recall as required by RCW 29.82.015. After concluding that this claim might well be meritorious, Reitsma filed a Second Amended Demand for Recall on December 14, which he served on Pederson that evening. The Second Amended Demand for Recall was identical to the Amended Demand for Recall except that it omitted the paragraph which the prosecutor had found legally insufficient and another paragraph which Reitsma had discovered might be factually in error. The three remaining paragraphs charged failure to satisfy residency requirements and two violations of the Open Public Meetings Act of 1971 (RCW 42.30). The alleged nonresidency is an issue which has existed for some time and was widely debated during Pederson's successful reelection campaign in 1977.

By letter dated December 20, Reitsma informed county officials that he wished to proceed only on the last recall demand. Early on the morning of January 3, 1983, 20 days after Pederson had been served, the prosecutor issued a ballot synopsis as required by RCW 29.82.020 and Reitsma began to collect petition signatures.

On January 7, Reitsma filed 8,278 signatures with the county auditor, respondent Luella Henry. This was the deadline for filing under RCW 29.82.025, which requires that all recall petitions be filed at least 10 months before the officer being called is up for reelection. The auditor began canvassing the petitions (i.e., validating the signatures) on January 14 and stopped on January 20 after canvassing only 5,790 of the signatures, 5,186 of which were found to be valid. Since only 3,770 signatures were necessary, the auditor then set a recall election for March 8, 1983.

During all of these events, a quo warranto action to remove Pederson from office due to his alleged nonresidency was pending, though it has now presumably been dismissed due to the success of the recall election. The quo warranto action was based on the same facts regarding nonresidency as the first paragraph of the Second Amended Demand for Recall.

I

Initially it should be noted that we have the power to enjoin a recall election if proper procedures are not followed. See Gibson v. Campbell, 136 Wash. 467, 471, 241 P. 21 (1925). In addition, we may stay an election until some appropriate future date. See Janovich v. Herron, 91 Wash.2d 767, 780, 592 P.2d 1096 (1979). Thus, we have the power to provide the relief requested by Pederson had we found his claims meritorious.

The most tenable of Pederson's arguments is that the auditor failed to comply with the requirement of RCW 29.82.090 that the canvassing officer "shall ... canvass and count the names of certified legal voters on such petitions." This necessarily implies that all signatures must be canvassed. Since a complete count was not made here, and an election date is to be fixed only "at the conclusion of the canvass and count" (RCW 29.82.100), Pederson argues that the auditor had no authority to set an election date.

Yet the mandatory wording of RCW 29.82.090 is not dispositive. Where the recall statute declares that things shall be done in a particular time and manner, the procedures will be regarded as mandatory only if they affect the actual merits of the election. McCormick v. Okanogan Cy., 90 Wash.2d 71, 76, 578 P.2d 1303 (1978). The auditor thus had a duty to canvass all signatures only if it might have some practical effect.

Pederson argues that there was such an effect here. In particular, he points out that RCW 29.82.090 requires that the auditor reject all signatures, including the first, of any person who signs more than one petition. In the present case, application of this rule could reduce the total number of valid signatures to less than the minimum required, if each of the uncanvassed signatures duplicated one already canvassed.

We hold, however, that RCW 29.82.090 is unconstitutional to the extent that it precludes the auditor from not counting even one duplicate signature. In Sudduth v. Chapman, 88 Wash.2d 247, 558 P.2d 806, 559 P.2d 1351 (1977), we held a similar provision governing referenda (see former RCW 29.79.200) ¹ violative of the constitutional right of referendum. Sudduth, at 251, 558 P.2d 806, 559 P.2d 1351. We noted that the people's constitutional reservation of the right of referendum was to be liberally construed and that the rejection of all duplicate signatures frustrated, rather than fulfilled, the right. Sudduth, at 251, 558 P.2d 806, 559 P.2d 1351.

The reasoning in Sudduth applies equally to RCW 29.82.090. As with the right of referendum, our constitution establishes a very broad right of the electorate to recall elective public officials. McCormick v. Okanogan Cy., supra, 90 Wash.2d at 75, 578 P.2d 1303. The rights of initiative, referendum, and recall form a weighty triumvirate intended to preserve the people's most basic right of self-governance and any interference with these rights requires strong justification. Just as we did in Sudduth, we find such justification lacking here.

The fact that the constitutional right of recall, unlike the right of referendum, is generally not self-executing (compare Const. art. 2, § 1(d) with Roberts v. Millikin, 200 Wash. 60, 73, 93 P.2d 393 (1939) and Const. art. 1, §§ 33, 34) is not relevant in the present case. All constitutional provisions are self-executing to the extent that they void all action taken in violation of them and preclude enforcement of any statute violating them. 1 T. Cooley,Constitutional Limitations 171 (8th ed.1927); 16 Am.Jur.2d Constitutional Law § 140, at 512 (1979). Const. art. 1, §§ 33, 34 explicitly set the "percentages of the qualified electors" which require a recall election. The complete exclusion of a particular elector's signature simply because he or she signed more than once affirmatively violates these provisions.

Since RCW 29.82.090's exclusion of all duplicate signatures is invalid, the auditor's failure to canvass all signatures after having already counted the minimum necessary to hold a recall election was of no practical import. The canvassing of the remaining signatures was thus not mandatory and hence not a prerequisite to fixing an election date.

II

Pederson also raises several other claims. We find these of even less merit than the first, however.

A

The first of these alternative claims is that Reitsma should not have been allowed to file amended recall demands. Pederson rightly points out that RCW 29.82 nowhere provides for multiple or amended recall demands and argues that they are therefore not permitted.

On the other hand, nothing in RCW 29.82 prohibits filing multiple or successive recall demands, either. Indeed, RCW 29.82.010 permits "any legal voter" to demand recall "[w]henever [he or she] shall desire", the only express limitation being that no such demand may be filed within 10 months of regular election (RCW 29.82.025). (Italics ours.) Moreover, the recall statute is to be construed in favor of the voter, not the elected official. See McCormick v. Okanogan Cy., supra, 90 Wash.2d at 78, 578 P.2d 1303. While we are inclined to imply into the statute a requirement that a voter choose between or consolidate multiple recall demands, Reitsma did so here. We must therefore reject Pederson's claim.

B

Pederson also contends that the county prosecutor issued the ballot synopsis ² prematurely. RCW 29.82.015 requires that service of a recall demand on the official whose recall is demanded must precede preparation of the ballot synopsis by not less than 20 days. If fractions of days are not ignored, less than 20 days passed in the present case between service of the recall demand and filing of the ballot synopsis, since service was in the late evening of December 14, 1982, and the ballot synopsis was filed on the morning of January 3, 1983. If fractions of days are ignored, on the other hand, exactly 20 days passed.

Pederson argues that, where justice demands, fractions of a day will be taken into account in computing the passage of time. See 74 Am.Jur.2d Time § 13, at 596 (1974). This is an exception to a general contrary rule, however. See 74 Am.Jur.2d Time § 13, at 595 (1974); see also Longview Co. v. Lynn, 6 Wash.2d 507, 527, 108 P.2d 365 (1940). The method of time computation is provided for in the state by court rule.

In computing any period of time prescribed or allowed by these rules, by...