Zachman v. Whirlpool Financial Corp.

• Decision Date: 24 March 1994
• Docket Number: No. 60292-1,60292-1
• Citation: 869 P.2d 1078,123 Wn.2d 667
• Parties: John ZACHMAN and Donna Zachman, husband and wife; and Anthony Crossler and Shannon Crossler, husband and wife, Respondents, v. WHIRLPOOL FINANCIAL CORPORATION, a foreign corporation, Petitioner.
• Court: Washington Supreme Court

Page 667

123 Wn.2d 667

869 P.2d 1078

John ZACHMAN and Donna Zachman, husband and wife; and Anthony Crossler and Shannon Crossler, husband and wife, Respondents, v. WHIRLPOOL FINANCIAL CORPORATION, a foreign corporation, Petitioner.

No. 60292-1.

Supreme Court of Washington,

En Banc.

March 24, 1994.

Perkins Coie, Thomas L. Boeder, William A. Kinsel, Seattle, and Callaway & Howe, Michael D. Howe, Omak, for petitioner.

Davis, Arneil, Dorsey, Kight & Parlette, Robert L. Parlette, Julie A. Anderson, Wenatchee, and Lacy, Kane & Richardson, Scott M. Kane, East Wenatchee, for respondents.

JOHNSON, Justice.

Defendant Whirlpool Financial Corporation (Whirlpool) appeals the denial of a motion to strike the order appointing Judge Thomas as judge pro tempore under article 4, section 7 (amendment 80) of the Washington State Constitution. At issue is whether a previously elected superior court judge who loses reelection is "retired" and therefore eligible to be appointed judge pro tempore without the consent of the parties in a case pending before him at the time of his electoral defeat. We hold the term "retired" includes superior court judges who have been defeated at reelection for the purpose of Const. art. 4, § 7 (amend. 80), and affirm the trial court's denial of the motion to strike the order appointing Judge Thomas.

In 1987, when this case was originally filed, Judge Thomas occupied the one superior court judge position in Okanogan County. In 1990, Judge Thomas granted plaintiffs Zachman and Crossler (Zachman) partial summary judgment on the issue of liability, and reserved the issues of damages and class certification. Whirlpool appealed the summary judgment in this court, which was decided on November 25, 1992. Zachman v. Whirlpool Acceptance Corp., 120 Wash.2d 304, 841 P.2d 27 (1992). While the appeal was still in this court, Judge Thomas was defeated in his bid for reelection by Jack Burchard.

Judge Thomas's term expired on January 11, 1993. We issued our mandate affirming summary judgment and remanded the case to the Okanogan County Superior Court on February 9, 1993. On February 16, 1993, on the court's own motion, Judge Burchard appointed Thomas as judge pro tempore in the case. In his order, Judge Burchard noted it would "be a great expense and disservice to the cause of justice and to the parties for a new judge to start over from the beginning". Clerk's Papers, at 3.

Whirlpool moved to strike the order appointing Judge Thomas as judge pro tempore on the basis he was not retired for the purpose of Const. art. 4, § 7 (amend. 80), and therefore could not sit without the consent of the parties. Clerk's Papers, at 18-33. Judge Burchard denied the motion, and Whirlpool appealed. The Court of Appeals certified the case to this court.

The appointment of judges pro tempore is authorized by Const. art. 4, § 7 (amend. 80), which reads in pertinent part:

A case in the superior court may be tried by a judge, pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court and sworn to try the case.

Amendment 80 took effect on December 2, 1987, and added a final sentence to section 7:

However, if a previously elected judge of the superior court retires leaving a pending case in which the judge has made discretionary rulings, the judge is entitled to hear the pending case as a judge pro tempore without any written agreement.

Prior to amendment 80, the only source of superior court judge pro tempore authority was the consent of the parties. Burton v. Ascol, 105 Wash.2d 344, 351-52, 715 P.2d 110 (1986). Amendment 80 dispensed with the requirement of consent and "created a new means for appointing a judge pro tempore in a very limited set of circumstances". State v. Belgarde, 119 Wash.2d 711, 723, 837 P.2d 599 (1992). Because Judge Thomas was "previously elected" and has "made discretionary rulings" in this case, the only circumstance at issue is whether Judge Thomas is a retired judge. Therefore, this case turns on whether the term "retired" as used in Const. art. 4, § 7 (amend. 80) includes superior court judges involuntarily retired by electoral defeat at reelection.

In construing constitutional language, words are given their ordinary meaning unless otherwise defined. State ex rel. O'Connell v. Slavin, 75 Wash.2d 554, 557, 452 P.2d 943 (1969) (citing State ex rel. Albright v. Spokane, 64 Wash.2d 767, 394 P.2d 231 (1964)). Whirlpool contends the common, ordinary meaning of the word "retire" is limited to voluntary retirement or retirement due to age or disability. Zachman, on the other hand, asserts the common meaning of the term "retire" is broad enough to include involuntary retirement by electoral defeat.

When the common, ordinary meaning is not readily apparent, it is appropriate to refer to the dictionary. American Legion Post 32 v. Walla Walla, 116 Wash.2d 1, 8, 802 P.2d 784 (1991). Webster's Dictionary lists several meanings of the word "retire", including "to withdraw from office, public station, business, occupation, or active duty". Webster's Third New International Dictionary 1939 (1986). The dictionary also lists "to cause to retire" as the definition of the verb transitive form of the word "retire", and gives the following sentence as an illustration of the appropriate use of the word in context: "[O]nce a man is put on a committee, he stays on it ... until the voters [retire] him". Webster's Third New International Dictionary 1939 (1986). Because the dictionary does not conclusively point to the definition advanced by either party, we rely on principles of statutory construction to determine which definition should be adopted. In re Marriage of Blickenstaff, 71 Wash.App. 489, 494, 859 P.2d 646 (1993) (citing Rozner v. Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991)).

In interpreting a constitutional amendment, the court also examines legislative history and material in the official voters' pamphlet. Washington Economic Dev. Fin. Auth. v. Grimm, 119 Wash.2d 738, 743, 837 P.2d 606 (1992). In addition, the court may consider extrinsic evidence of the circumstances that gave rise to the amendment. State ex rel. PUD 1 v. Wylie, 28 Wash.2d 113, 127, 182 P.2d 706 (1947). The interpretation adopted should be one that gives effect to the manifest purpose for which the constitutional provision was adopted. Belgarde, 119 Wash.2d at 724, 837 P.2d 599 (citing Citizens for Financially Responsible Gov't v. Spokane, 99 Wash.2d 339, 346, 662 P.2d 845 (1983).

Amendment 80 evolved from the lengthy and complex water rights case Department of Ecology v. Aquavella, 100 Wash.2d 651, 674 P.2d 160 (1983), which was before Yakima County Superior Court Judge Walter Stauffacher. Belgarde, 119 Wash.2d at 723 n. 6, 837 P.2d 599. In 1986, the litigation was already 5 years old, but still an estimated 5 or 6 years from completion. The amendment was necessary to allow Judge Stauffacher to complete the litigation beyond his upcoming scheduled retirement because any one of the 2,500 claimants in the case could have prevented his appointment as judge pro tempore under Const. art. 4, § 7 (amend. 80), as it then stood. It was possible that had a new judge taken over the case, the parties would attempt to relitigate issues resolved against them by Judge Stauffacher. More importantly, a substitution of judges in the case would have been disruptive of the trial process, created significant delay, and consumed a substantial amount of limited judicial resources.

When amendment 80 was put before the Legislature and the voters of this state, the proponents of the amendment echoed Judge Stauffacher's concerns. They declared the purpose of the amendment was to avoid the expense, delay, and disruption of pending cases caused by the transition between an outgoing judge and an incoming judge, particularly in cases involving complicated and complex matters. Amendment 80 provides "an efficient and economical means of continuing a case when a judge retires". Official Voters' Pamphlet 8 (1987).

Proponents of the amendment emphasized the judicial efficiency and economy purpose is achieved without any unfairness to the parties. The parties involved have agreed to the particular judge hearing the case because they have decided not to exercise their statutory right to file an affidavit of prejudice, which would have automatically removed the judge prior to any discretionary rulings in the case. Senate Bill Report SJR 8207, 50th Legislature (1987); Official Voters' Pamphlet 9 (1987). Having already agreed to the judge hearing the case, the parties are required to continue before the previously elected judge under amendment 80. The amendment is particularly beneficial to judicial districts with few judges serving the district, and in cases that have been before the court for many years and would demand considerable time of the incoming judge to catch up. Official Voters' Pamphlet 8 (1987).

Broadly construing "retire" to include retirement by reelection defeat advances the purpose of the amendment to promote judicial efficiency and economy. Nevertheless, Whirlpool argues the purpose of the amendment could not have been to empower defeated judges to continue judicial functions after the voters have removed the judge from office. However, our state constitution does not guarantee the right to a trial presided over by an elected superior court judge. Belgarde, 119 Wash.2d at 720-21, 837 P.2d 599. Moreover, this court has always made clear the source of the pro tempore's authority is not the electorate, but the consent of the parties. Burton, 105 Wash.2d at 351, 715 P.2d 110; National Bank v. McCrillis, 15 Wash.2d 345, 357, 130 P.2d 901, 144 A.L.R. 1197 (1942).

That the judge is voted out of office midway during complex litigation is not significant because a superior court judge pro tempore does not derive his or her authority from a general election. Rather,...