State ex rel. Boyles v. Whatcom County Superior Court

• Decision Date: 11 January 1985
• Docket Number: No. 50141-6,50141-6
• Parties: STATE ex rel. Wanda A. BOYLES; and Wanda A. Boyles, Appellants, v. WHATCOM COUNTY SUPERIOR COURT and the Judges thereof; Whatcom County District Court and the Judges thereof; Whatcom County; David S. McEachran, Whatcom County Prosecuting Attorney; City of Bellingham Municipal Court and the Judges thereof; and City of Bellingham, Respondents.
• Court: Washington Supreme Court

Page 610

103 Wn.2d 610

694 P.2d 27

STATE ex rel. Wanda A. BOYLES; and Wanda A. Boyles, Appellants, v. WHATCOM COUNTY SUPERIOR COURT and the Judges thereof;

Whatcom County District Court and the Judges thereof;

Whatcom County; David S. McEachran, Whatcom County

Prosecuting Attorney; City of Bellingham Municipal Court

and the Judges thereof; and City of Bellingham, Respondents.

No. 50141-6.

Supreme Court of Washington,

En Banc.

Jan. 11, 1985.

John D. Alkire, American Civ. Liberties Union, Seattle, for appellants.

Ian R. Sievers, Asst. City Atty., Robert S. Jones, Randall Watts, Deputy Pros. Atty., Bellingham, for respondents.

DIMMICK, Justice.

This case is before us on direct appeal of the trial court's summary judgment dismissal of appellant Boyles' case for lack of standing. Additionally, Boyles urges this court to grant her original summary judgment motion to enjoin respondent county offices (County) from offering a single work release program which mandates religious activities. ¹ We reverse as to standing but dismiss as to the underlying action, finding that the issue originally raised before this court is now moot.

In her original appeal to this court, Boyles presented two issues:

(1) Whether a citizen has standing to challenge governmental action assigning prisoners to a nongovernmental work release program which requires religious activities, when the citizen is not personally involved in the program and when no public money is expended directly on the program.

(2) Whether government officials violate the first amendment of the United States Constitution and/or art. 1, § 11 (amend. 34) of the Washington Constitution when they assign prisoners to a nongovernmental work release program which requires religious activity, and when there is no alternative nonreligious work release program.

Subsequent to the hearing on that appeal, the County filed a motion with this court to dismiss the action as moot. The County argues that because its new jail is now open and offering an alternative work release program, the issue has no significance. Boyles has in turn filed a brief in opposition to dismissal. She contends that the disparity between the in-jail work release program and the religiously oriented work release program still represents an unconstitutional advancement of religion and an infringement on the free exercise of religion.

Boyles' original complaint sought prohibition of the County's use of the Lighthouse Mission (Mission) unless the mandatory worship requirement ceased or until an equivalent program was provided. Argument before this court, however, assumed that the County would accommodate the entire work release program within the new jail. In fact, the County stated that this was its intention. Consequently, the issue of equivalency was neither briefed nor argued.

We are in effect now presented with a different case, involving new, disputed facts. This new case is not properly before us on appeal. We, therefore, dismiss Boyles' constitutional claim as moot.

The remainder of our opinion addresses the issue of Boyles' standing to sue, since it is a threshold requirement to any future action. A brief overview of the facts is helpful to understanding our reasoning as to standing. Because the trial judge dismissed on the basis of lack of standing, there were no findings of fact. The original facts before us, however, were basically undisputed.

Boyles is a resident and taxpayer of Whatcom County. In April 1982, she requested the Attorney General of the State of Washington to commence an action to enjoin assignment of county prisoners to a work release program conducted by the Lighthouse Mission, Inc. The Attorney General declined, and this action was initiated.

The Mission's involvement in the county work release program began in response to an overcrowding situation in the county jail. In 1980, the County sought an outside organization to accept work release prisoners. Prior to this date, the work release program had operated through the county jail facility for 14 years. The Lighthouse Mission, Inc. was the only organization willing to house the program in 1980. The Mission is a church supported organization. The work release program is generally self-supporting, however, with participating prisoners charged $10 per day. Indigent prisoners are accommodated through alternative service or a waiver of the charge. No public funds are spent on the Mission program except for the incidental effect of publicly paid personnel who determine eligibility and assignment to the program.

With the opening of the new jail facility, the County now offers an alternative to the Mission program. It still, however, assigns prisoners to the Mission. The thrust of Boyles' new argument is that the jail work release alternative is more restrictive, and, therefore, less desirable than assignment to the Mission work release program. In addition to raising a new issue, she raises questions of fact as to the details of the present jail program and the degree of similarity between the two programs. As noted above, neither of these is properly before this court.

As to the issue of Boyles' standing to raise the constitutional questions, her connection to the alleged injury is attenuated. She alleges no direct impact as a present or past offender in the County or City jail. Instead, she brings action as a taxpayer alleging that official government acts amount to an unconstitutional support of religion.

This court recognizes litigant standing to challenge governmental acts on the basis of status as a taxpayer. See e.g., Tacoma v. O'Brien, 85 Wash.2d 266, 269, 534 P.2d 114 (1975); Calvary Bible Presb. Church of Seattle v. Board of Regents, 72 Wash.2d 912, 917-18, 436 P.2d 189 (1967); Fransen v. Board of Natural Resources, 66 Wash.2d 672, 404 P.2d 432 (1965). Generally, we have required that a taxpayer first request action by the Attorney General and refusal of that request before action is begun by the taxpayer. See, e.g. Tacoma v. O'Brien, supra; Citizens Council Against Crime v. Bjork, 84 Wash.2d 891, 893, 529 P.2d 1072 (1975). We have recognized however that even that requirement may be waived when "such a request would have been useless." Farris v. Munro, 99 Wash.2d 326, 329-30, 662 P.2d 821 (1983).

The recognition of taxpayer standing has been given freely in the interest of providing a judicial forum when this state's citizens contest the legality of official acts of their government. We have acknowledged that the value of taxpayer suits generally outweighs any infringement on governmental processes. Calvary Bible, 72 Wash.2d at 917, 436 P.2d 189; Fransen, 66 Wash.2d at 677, 404 P.2d 432. Only when such recognition would encourage "unwarranted harassment" of public officials have we implied that standing would be denied. Calvary Bible, 72 Wash.2d at 918, 436 P.2d 189. The only injury that Boyles alleges is one common to all citizens: that is, the right to be protected from official governmental acts which favor one religion over another. Her claim is similar to that recognized by this court in Calvary Bible. In that case we granted standing to the ministers of two churches, while denying standing to the churches as such, requiring that "plaintiff must at least be a taxpayer." Calvary Bible, at 917, 436 P.2d 189. The ministers contested a class at the University of Washington which taught the Bible as literature, arguing violations of their constitutionally protected religious freedom.

The facts in Calvary Bible indicate greater involvement of public funds than do the undisputed facts in this case. Funding of the Bible course is more directly attributable to tax monies than the indirect funding of government officials in assigning prisoners to the work release program at the Lighthouse Mission. In this regard, the present case is more analogous to Perry v. School Dist. 81, 54 Wash.2d 886, 344 P.2d 1036 (1959). The activities found to be unconstitutional in Perry involved teachers' time spent in distributing cards and making announcements of religious released-time program held off school grounds, as well as access to school property by religious representatives for similar purposes. Perry, at 898, 344 P.2d 1036.

Although Boyles alleged injury is generalized, we recognize her standing to sue on the basis of taxpayer status. Consistent with our past holdings, she has sought and been denied enforcement of her complaint by the Attorney General. Accordingly, the trial court is reversed.

The issue of an alternative nonreligious work release program became moot with the County's provision of such a program within its new jail facility. Boyles' opposition to the County's motion to dismiss raises issues and facts never before the trial court. We therefore hold that the constitutional claim raised in her original appeal is moot. This action is thus dismissed.

UTTER, PEARSON and ANDERSEN, JJ., concur.

DOLLIVER, J., concurs in result only.

BRACHTENBACH, Justice (concurring in part, dissenting in part).

I concur in the majority's holding that the plaintiff has standing, but I do so on the basis of what I conceive to be a fundamental principle quite apart from earlier precedent. I, however, dissent to the majority's holding that the issue originally raised before this court is now moot.

Defendants in criminal proceedings were before the court. I cannot imagine more awesome exercise of the power of the State than the decisionmaking power of a judge to literally determine the fate of the particular defendant before that court. That process should not compromise fundamental rights of those defendants.

Of all governmental institutions, the courts should be subject to challenge in a case where the plaintiff, whether successful or not, alleges that the court, in the name of reality or expediency, violates a citizen's constitutional rights. For this reason I would find that when it is alleged that the court...