State ex rel. Quick-Ruben v. Verharen

• Decision Date: 24 December 1998
• Docket Number: QUICK-RUBE,P,No. 65564-2,65564-2
• Citation: 969 P.2d 64,136 Wn.2d 888
• Court: Washington Supreme Court
• Parties: STATE of Washington ex rel. Stevenetitioner, v. Arthur W. VERHAREN, Respondent.

Page 888

136 Wn.2d 888

969 P.2d 64

STATE of Washington ex rel. Steven QUICK-RUBEN, Petitioner, v. Arthur W. VERHAREN, Respondent.

No. 65564-2.

Supreme Court of Washington En Banc.

Argued May 19, 1998.

Decided Dec. 24, 1998.

Steven Quick-Ruben, Catherine Smith, Seattle, for Steven Quick-Ruben

Bruce Danielson, Seattle, for Appellant Danielson.

Kurt Bulmer, Seattle, for Respondent Verharen.

TALMADGE, J.

A losing candidate for election to the superior court brought this private quo warranto action asserting entitlement to the constitutional office as opposed to the election winner. The losing candidate claimed the victor was not a qualified candidate because the victor was allegedly not a county resident. An action was commenced before the winner was sworn in for the term of office to which he had been elected.

We decide the petitioner lacked standing to bring the private quo warranto action, which asserted entitlement to the constitutional office of superior court judge, having failed to plead a special interest or entitlement to the office as required by numerous Washington quo warranto cases. We also decide the action was premature, having been commenced before the term of office at issue. We affirm the trial court's dismissal of the action and imposition of attorney fees under CR 11 and RCW 4.84.185. We also award fees on appeal.

ISSUES

1. Does Quick-Ruben have standing to bring this private quo warranto action?

2. Was Quick-Ruben's private quo warranto action premature?

3. Was this action frivolous, meriting an award of attorney fees under RCW 4.84.185 or CR 11 against Quick-Ruben in favor of Verharen?

FACTS

Steven Quick-Ruben (Quick-Ruben) filed a summons and information in quo warranto on December 23, 1996, seeking Verharen moved to dismiss Quick-Ruben's action, which the trial court granted because Quick-Ruben's action was premature and lacked standing; the trial court also granted an undetermined amount of attorney fees against Quick-Ruben on the basis of CR 11. ¹ The trial court subsequently signed orders awarding attorney fees to Verharen against Quick-Ruben pursuant to CR 11 in the amount of $8,732.50, and pursuant to RCW 4.84.185 in the amount of $6,632.50, and ordered payment to be made within 45 days. ²

a judgment declaring that he had superior title to the office of Judge of the Pierce County Superior Court Department 1 for the term beginning January 13, 1997. The information also sought a judgment for damages based on Judge Arthur Verharen's (Verharen) usurpation of the office. Verharen's term of office, as a result of the 1996 election, commenced on January 13, 1997, and has continued through to the present time. Verharen filed an answer raising affirmative defenses to Quick-Ruben's action including premature filing of the information, lack of standing and an assertion residency within Pierce County was not a requirement to hold the office of superior court judge.

ANALYSIS

A. Quo Warranto Actions

Quo warranto actions have their roots in the English common law tradition; the writ of quo warranto was designed to challenge the entitlement of a person to hold office. State ex rel. Smith v. Mills, 2 Wash. 566, 568-69, 27 P. 560 (1891); see also 74 C.J.S. Quo Warranto § 1, at 174-75 (1951); 65 Am.Jur.2d Quo Warranto §§ 1-3, at 230-32 (1972), at 49 (Supp.1998). In Washington, actions for quo warranto are also part of our legal tradition. The Washington Constitution, article IV, section 4 confers original jurisdiction upon this Court over quo warranto as to all state officers. ³ Quo warranto actions are also recognized in statute:

The [quo warranto] information may be filed by the prosecuting attorney in the superior court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information.

RCW 7.56.020. Indeed, we have determined quo warranto is the proper and exclusive method of determining the right to public office. Green Mountain Sch. Dist. No. 103 v. Durkee, 56 Wash.2d 154, 159, 351 P.2d 525 (1960) (citing cases).

Shortly after the adoption of our state constitution, we addressed the standing of parties to pursue quo warranto actions in State ex rel. Smith v. Mills, 2 Wash. 566 if the injury is one that is peculiar to the individual he has his right of action, but if it affects the whole community alike, the remedy is by proceedings by the state through its appointed agencies.

571-75, 27 P. 560 (1891), where we first set forth guidelines for quo warranto actions which have been followed for more than 100 years. We noted:

Mills, 2 Wash. at 575, 27 P. 560. We also discussed standing and procedure in detail:

The common law on [quo warranto] has been supplanted by the statute--the state has legislated on the subject--and it is to the statute we must look, not only for the practice of the court, but for the qualifications of the relator.... The statutes specify those who have the legal right to invoke this remedy. If the relator has a standing here, it must be under § 703, which is as follows:

"Sec. 703. The information may be filed by the prosecuting attorney in the district court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority, or by any other person, on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information."

The legislature has looked out for the interests of the public by providing that the information shall be filed by the prosecuting attorney, either on his own relation, or when directed by the court or other competent authority; and private interests are provided for in the latter part of the section by the words, "or by any other person on his own relation." When? When he "claims an interest in the office, franchise or corporation which is the subject of the information." What interest is meant? Surely not an interest in common with other citizens, for the protection of that interest is already provided for in the first part of the section. If the statute is to be construed as having any meaning at all, and if words are to be given their ordinary meaning, and the ordinary grammatical construction is given to the language and sentences, it must mean that the interest must be a special interest, not common with the interests of the community ....

... [The quo warranto statutes] all convey the idea that where the relator is other than the prosecuting attorney he must show his interest, and will be entitled to damage if he prevail, showing conclusively that his interest must be a special interest, and that his damage would be equally distinct.

Mills, 2 Wash. at 571-73, 27 P. 560. See also State ex rel. Brown v. Warnock, 12 Wash.2d 478, 481-83, 122 P.2d 472 (1942) (town mayor, having no interest in the office of town attorney, proceeded correctly in petitioning the court to require the prosecuting attorney to show cause why he should not be compelled under the quo warranto statute to file an information in quo warranto to determine the right of the incumbent town attorney who allegedly held such office unlawfully). In State ex rel. Johnson v. Lally, 59 Wash.2d 849, 370 P.2d 971 (1962), the petitioner (or relator) asked the superior court to compel the prosecutor to bring an action of quo warranto against a nonprofit corporation; we upheld the trial court's denial of mandamus, and set forth the appropriate procedures for a public quo warranto action:

The relator does not claim an interest in the corporation. However, we have held that a taxpayer who has no special interest in the subject matter of the information may apply to the court for an order of mandamus where the prosecutor has refused to act.

Where the court is asked to take such action by one claiming no interest in the corporation, however, the burden is upon him to make a plain showing that facts exist which would justify the prosecutor in maintaining the quo warranto proceeding. Final discretion rests in the trial court as to whether the prosecuting attorney should be directed to institute such a proceeding; and unless it plainly appears that the trial court abused its discretion in refusing to order the prosecuting attorney to file an information, this court will affirm its action.

Johnson, 59 Wash.2d at 850-51, 370 P.2d 971 (citations omitted).

Thus, we have established two types of quo warranto actions under RCW 7.56.020: a public quo warranto action brought by the prosecutor, and a private quo warranto action available only where the petitioner can assert and prove a special interest in the office. Quick-Ruben did not seek a public quo warranto action ⁴ and we now turn to whether he properly asserted a private quo warranto action here.

B. Quick-Ruben Failed to Meet His Burden in a Private Quo Warranto Action

In order to sustain a private quo warranto action, the petitioner must plead and prove a special interest in the office which is the subject of the action. In State ex rel. Dore v. Superior Court for King County, 167 Wash. 655, 9 P.2d 1087 (1932), we affirmed the trial court's dismissal of a quo warranto action by the mayor-elect of Seattle to unseat the interim mayor because the mayor-elect lacked standing to maintain the action:

It seems essential that the relator should plead some right or title in himself to the unexpired term, in order to be heard. Unless he has some interest, he can not maintain the action under the statute. It is no doubt true that, when the sovereign, the state or its proper officer, brings an action in the nature of quo warranto, alleging that one is wrongfully usurping an office which belongs to another, the common law rule places the burden on ...