State ex rel. Zempel v. Twitchell

• Decision Date: 12 January 1962
• Docket Number: No. 35956,35956
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the Relation of Arnold R. ZEMPEL, Prosecuting Attorney for Snohomish County, Plaintiff, v. Robert TWITCHELL, also known as Bob Twitchell, Relator. The Superior Court of the State of Washington for Snohomish County, William J. Wilkins, Judge, Respondent.

Page 419

59 Wn.2d 419

367 P.2d 985

The STATE of Washington, on the Relation of Arnold R ZEMPEL, Prosecuting Attorney for Snohomish County, Plaintiff, v. Robert TWITCHELL, also known as Bob Twitchell, Relator The Superior Court of the State of Washington for Snohomish County, William J. Wilkins, Judge, Respondent.

No. 35956.

Supreme Court of Washington, En Banc.

Jan. 12, 1962.

Clay Nixon, Robert L. Butler, Seattle, for relator.

Arnold R. Zempel, Russell C. Jefferson, Everett, for respondent.

FINLEY, Chief Justice.

In this certiorari action the petitioner seeks to void a decree of the superior court in quo warranto proceedings ousting him from the office of county sheriff. The facts and events leading to review here by certiorari are as follows:

On January 22, 1960, a Snohomish County Grand Jury indicted Robert Twitchell, the relator herein. In three separate counts the indictment charged that Twitchell, while serving as the duly elected sheriff for Snohomish County willfully and knowingly failed and neglected to perform a duty enjoined upon him by law by permitting 'the keeping of a house of prostitution and the practice of prostitution' within the county. A criminal trial was held in the superior court for Snohomish County, and on November 9, 1960, a trial jury returned a verdict of guilty on two of the three counts charged. On January 12, 1961, the trial court entered judgment and sentence. Notice of appeal was timely filed. ¹

On January 16, 1961, the Board of Commissioners of Snohomish County, by resolution, declared the office of County Sheriff vacated as of January 12, 1961. On January 17, the prosecuting auttorney for Snohomish County filed an information in quo warranto. It recited as a fact the criminal conviction of the county sheriff and asserted that the office had been vacated and forfeited by the criminal conviction in the superior court and that the relator was refusing to relinquish the office. The prayer of the information in quo warranto sought a judicial determination that under the statutes of Washington the relator's status or position as sheriff was forfeited and that the office of sheriff was thereby legally vacated. Also, a court order was sought legally ousting relator from the office of sheriff.

The relevant statutes are RCW 42.12.010, which states:

'Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer. * * * fifth, his conviction of an infamous crime, or of any offense involving a violation of his official oath; * * *.'

and RCW 9.92.120, which reads:

'The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state.'

On February 2, 1961, the relator moved to dismiss the information, and on February 8, 1961, further moved to strike certain portions of the information. Both motions were heard on February 10, 1961, and were orally denied at that time. The trial judge advised relator that the initial or basic question raised by the ouster proceeding was whether the superior court conviction of willful, knowing neglect of duty amounted to either a violation of relator's official oath, or malfeasance in office, under the two pertinent statutes, supra. The trial judge stated that he would decide all questions presented and would make a final determination as to the ouster proceeding on February 15, 1961, and the parties were directed to present any further pleadings or motions by that time. February 15 was selected so relator would have time to apply for a writ of prohibition in the Supreme Court. Such an application was made, and after argument and hearing the application was denied on February 14, 1961.

On February 15, written orders denying relator's motion to dismiss and motion to strike were signed and entered by the trial court, and an answer to the information was filed. The answer admitted that relator had been criminally convicted in the superior court, but attempted to set up two affirmative defenses: (1) That the Board of County Commissioners did not have authority to vacate relator's office; and (2) that relator had not violated his official oath of office because he had faithfully and impartially discharged the duties of the office to the best of his ability 'by repeated warnings and surveillance and attempting to close the alleged establishments of prostitution by making it difficult and unprofitable to operate.'

The trial judge orally denied a demand for a jury. Relator then requested a stay of the entry of judgment to allow sufficient time to permit another application to the Supreme Court for a writ of prohibition. This was denied on the ground that time had already been allowed for this purpose. The court, acting on the prosecuting attorney's motion 'that the relief prayed for in the information be granted', determined that the pleadings presented only an issue of law, and proceeded to enter a judgment of ouster, including also findings of fact and conclusions of law.

Relator sought and obtained a writ of certiorari to review the actions of the trial court.

We note as a preliminary matter that the action of the Board of County Commissioners is irrelevant to the issues before this court. If the relator's office is vacant and forfeited, it is the result of the operation of statutory law, and not the result of a resolution of the Snohomish County Board of Commissioners acknowledging that a vacancy existed.

It is contended that certain Rules of Pleading, Practice, and Procedure were violated in the quo warranto proceedings, thereby depriving relator of a reasonable time to prepare for a trial on issues of fact and law resulting in a denial of due process of law. The specific violations alleged are that (1) relator was not given ten days after the trial court's action in denying relator's motion to dismiss and motion to strike, to file his answer to the quo warranto information as required by Rule 12(a); (2) three days' notice of the time and place of the submission of proposed findings and conclusions was not allowed as provided in Rule 52.08W; and (3) Rule 56(c) was not complied with since relator was not given ten days' notice of a hearing in summary judgment. These contentions will be dealt with seriatim.

(1) It is implicit in Rule 12(a) that differing circumstances result in different time limits for preparing responsive pleadings. After designating the various time periods, the rule provides as follows:

'* * * The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) * * *.' (Emphasis supplied.)

Clearly, the ten-day requirement is not absolute, but is subject to modification according to the discretion of the court. Sec Meisenholder, The Effect of Proposed Rules 7 Through 25 on Present Washington Procedures, 32 Wash.L.Rev. 219, 253-254 (1957). The reason for allowing some discretion in these circumstances is to guard against motions brought merely for dilatory purposes. In the instant case, although the court fixed a time for submission of the pleadings which was less than ten days after oral notice was given, it cannot be said that there was an abuse of discretion. Since relator filed his answer on the date fixed by the court, it is obvious that he had sufficient time to prepare this pleading. Additional time to prepare a responsive pleading was not sought at the time, and there is nothing to indicate that the answer would have been any different had a few more days been allowed. Relator is therefore in no position to complain now about the date fixed for answer.

(2) According to Rule 52.04W, 'The trial court shall make findings of fact in all equity cases, and in all law cases tried before the court without a jury.' (Emphasis supplied.) Neither a proceeding in summary judgment nor a judgment on the pleadings can be regarded as a trial, since issues of fact are not tried. The function of a summary judgment proceeding, or a judgment on the pleadings is to determine whether or not a genuine issue of fact exists, not to determine issues of fact. Assuming, arguendo, that the trial court granted a summary judgment, findings and conclusions were unnecessary. Innumerable cases to this effect appear in 4 Fed. Rules Digest, 52 a 1. See also, Comment 31 Wash.L.Rev. 261 (1956). A fortiori fndings are unnecessary in a proceeding for judgment on the pleadings, since the judgment is based solely on the pleadings without regard to supporting affidavits. See Finley v. Finley (1953), 43 Wash.2d 755, 264 P.2d 246, 42 A.L.R.2d 1379. Findings and conclusions in the instant case were superfluous. Their absence could not have prejudiced relator's case in any way. Rule 52.08W is therefore inapplicable.

(3) There is no doubt that ten-days' notice would be required if the proceedings leading to the ouster judgment were in the nature of summary judgment. The record shows, however, that the trial court's decision was based on the pleadings. Language appearing in Mayflower Air-Conditioners v. West Coast Heating Supply (1959), 54 Wash.2d 211, 215, 339 P.2d 89, 92, is appropriate and instructive at this point:

'We cannot, however, pass without comment the * * * contention that the motion on which the trial court passed was a motion for summary judgment. It not only was not denominated a motion for summary judgment, but there was no attempt to comply with the summary judgment rule * * * which requires that the notice thereof be served ten days before hearing.'

The court continued by considering the '* * * motion for what it...