SAMUEL GAIL LEONARD, Respondent, v. THE CITY OF SEATTLE et al., Appellants
No. 42199
En Banc.
November 15, 1972
Petition for rehearing denied January 12, 1973.
81 Wn.2d 479
Affirmed.
ROSELLINI, HUNTER, NEILL, STAFFORD, and WRIGHT, JJ., and COCHRAN, J. Pro Tem., concur.
FINLEY, J., concurs in the result.
HAMILTON, C.J. (concurring in part)—I concur in the affirmance, but would authorize the giving of the cited alibi instruction when requested by the accused and the evidence warrants.
Kempton, Savage & Gossard, by Anthony Savage, for respondent.
HALE, J.—Defendant is a retired Seattle police officer who challenges the loss of his pension, canceled because of his felony conviction. He joined the Seattle Police Department December 15, 1941, and, except for military service, served for 25 years until his retirement on March 1, 1967. During his tenure as a police officer, he made mandatory contributions to the retirement system totaling $4,820.25; he retired at a monthly pension of $493.50.
Following plaintiff‘s conviction in federal court January 8, 1971—some 4 years after his retirement—of violating
The first question is whether the appeal should be dismissed for lack of jurisdiction in the trial court because the Attorney General had not been served with the summons and complaint pursuant to
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which
would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.
Plaintiff brought this suit under the declaratory judgment provision of
Although in a general sense it is correct to say that the provisions of the statute,
Here, the Attorney General actually, in open court, waived the requirement of service. When the appeal was called for hearing before this court, the Attorney General, through his duly qualified and acting assistant, Mr. Keith Dysart, stated categorically that the Attorney General‘s office would not stand upon the statute, did not wish the cause to be remanded to the trial court for service of the summons and complaint upon the Attorney General and that he was satisfied that the statute in controversy had received and would receive a vigorous support by the defendant city‘s corporation counsel.
Following are some of the statements made by Mr. Dysart to this court and counsel when the appeal was called for oral argument. After observing that the Attorney General‘s office is served in declaratory relief actions in excess of 250 cases a year, Mr. Dysart said:
We appear only in those actions where we think there is an overriding state interest and where we believe that the statute is not going to receive an adequate and vigorous constitutional defense, something that is certainly not the case where the corporation counsel and Mr. Lane are involved.
He added that if plaintiff had to start the action over again, the appeal would come back to the court next year; and said, too, that the Attorney General‘s office had been advised by plaintiff‘s counsel and knew of the pendency of this action and went on to say:
We are here before you to tell you that if we had been served, we simply would have entered a notice of appearance and in effect tendered the defense to the corporation counsel‘s office, because we have respect for their ability to defend ordinances and statutes on constitutional grounds . . .
Then, after stating that the Attorney General‘s office sometimes finds out about actions of this sort in a rather informal way and advises counsel that they would like to be served, and referring to the instant case, Mr. Dysart said:
But as to this particular case we join in Mr. Lane‘s [Assistant Corporation Counsel] position, the position that we would have advocated . . . We believe that the argument was adequately presented in his briefs and oral argument . . . This is the kind of situation where we don‘t think the priorities warrant our attention. He‘s there to defend the statute. We hate to have the case sent down and start all over again simply to tender the defense to Mr. Lane to bring it right back up to you again . . .
Our decisions on the subject of jurisdiction, that is, the power of a court to hear and decide a controversy, have never gone so far as to hold in a case of this kind, where all of the real parties in interest are before the court, that the superior court, at the outset, was without jurisdiction.
The record discloses this to be a suit for a declaratory judgment, and for affirmative relief brought by a proper party against a proper party defendant in a court having jurisdiction over both parties and subject matter, and constitutionally empowered to enter a determinative judgment and decree in the premises. All that is lacking for fulfilling jurisdiction is proof that notice of the pendency of the action had been given to the state Attorney General—a notice which that officer acknowledged in open court had been given him before argument of the appeal. This acknowledgment coupled as it was with a categorical declaration that had a summons and complaint been timely served, the action of the Attorney General in the case would not have differed from the position taken by that officer in open court, constituted, we think, an appearance. Statements
On the next issue, the trial court held unconstitutional, as amounting to a forfeiture of estate for conviction of a crime,
Plaintiff‘s retirement pension was discontinued under the terms of
Whenever any person who shall have received any benefit from said fund shall be convicted of any felony, or shall become an habitual drunkard, or shall fail to report himself for examination for duty as required herein, unless excused by the board, or shall disobey the requirements of said board then such board shall order and direct that such pension or allowance that may have been granted to such person shall immediately cease, and such person shall receive no further pension or allowance or benefit under this chapter, but in lieu thereof the said pension or allowance or benefit may, at the discretion of the board, be paid to those immediately dependent upon him, or to his legally appointed guardian.
In holding the above provision unconstitutional as ap-
No conviction shall work corruption of blood, nor forfeiture of estate.
Cf.
The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Both parties rely considerably on their contrasting views of the rationale of Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), probably our leading statement on the basic legal nature of public pensions. The city cites Bakenhus as declaring that the right to a pension, although vesting upon retirement is wholly contractual in nature, including all applicable statutes as component parts of the contract, and that plaintiff thus contracted that if convicted of a felony his pension should be discontinued. Accordingly, argues the city, the estate is no greater than the contractual rights which created it, and plaintiff‘s pension vested conditionally only, to be canceled upon occurrence of the very condition upon which he had agreed it should be discontinued. It is thus argued that the duty of the city to discontinue the pension is an integral part of contract, and plaintiff‘s felony conviction placed a contractual as well as a statutory obligation on the pension board to stop the pension payments. Accordingly, contends the city, even though the pensioner‘s rights to his pension commence to vest as he performs his work and contributes into the pension fund, these rights, accruing and vesting as they do from day to day and year to year until finally ripening to a right to payment at the time of retirement, constitute but a limited estate, delimited by contractual rights according to the terms of a contract set forth by statute, charter and ordinance during the years of employment.
We accept the city‘s contention to the extent that the retirement pension is contractual in nature; but that does not mean that once vested the right to the pension
As this court said in Bakenhus, at page 698:
In this state, a pension granted to a public employee is not a gratuity but is deferred compensation for services rendered. The contractual nature of the obligation to pay a pension when the employee has fulfilled all of the prescribed conditions was recognized in Luellen v. Aberdeen, 20 Wn. (2d) 594, 148 P. (2d) 849 (1944) . . .
Bakenhus thus held that, although the rights to a retirement pension were contractual in nature and supported by consideration in the form of work performed and contributions made by an employee in the public service, they accrued and vested from day to day and year to year to ripen finally with the fulfillment of the conditions of the contract. The employee ultimately acquires a vested right to the present payment of the pension, which right imposes upon the state or its subordinate agencies a corresponding duty to create and maintain the fund to pay the pension according to the terms of the contract. Even before ripening finally, and during the years of its accrual, it was more than an expectancy and more than an enforceable promise or a contract; it gave him steadily accruing rights in and to the pension fund itself. As fully ripened, plaintiff‘s pension constituted property—the present right to payment of his deferred compensation. When his rights to the pension fully vested, he acquired enforceable rights to funds under the control of the trustees according to his contract, and these rights thus finally vested constituted property not to be divested or defeated by means or for other reasons or on different grounds than those upon which any other kind of property could be alienated or defeated.
The general rules delineating the nature of public pensions are seen in a series of cases passing directly upon the
Because the rights to a public pension accrue with the performance of the public work or service, they are to be determined as of the latest enactments applicable to the recipient in effect prior to actual retirement. This, of course, is not to hold that in periods of extreme economic emergency the state may not make equitable and temporary alterations in the pension in order to insure its continuance and the survival of the pension system, but that problem is not now before us. The issue here does not arise from a general change in pension benefits made necessary by a deep and general economic crisis threatening the survival of the whole pension system, but rather from a statute which provides for a total defeat of one man‘s pension occurring long after it had finally vested. Dailey v. Seattle, 54 Wn.2d 733, 344 P.2d 718 (1959).
Pension rights, because of their nature as deferred compensation, vest under then applicable legislation upon the commencement of employment or service and continue to vest with each day of employment or service. Bowen v. Statewide City Employees Retirement Sys., 72 Wn.2d
The city relies, too, on the basic principle that a criminal acquires no property rights in the fruits of his crime, and would extend this principle to the plaintiff‘s situation because, it is said, he agreed he would surrender his pension if he were convicted of a felony. One cannot deprive the true owner of his property through criminal acts; we adhere to the idea that one who murders his spouse to inherit from her acquires nothing thereby. In re Estate of Tyler, 140 Wash. 679, 250 P. 456 (1926). It follows, therefore, as a general rule in such cases that, since no property is lawfully acquired by the crime, there is nothing to be forfeited on conviction for it. See also In re Estate of Helwinkel, 199 Cal. App. 2d 283, 18 Cal. Rptr. 473 (1962), holding that a woman convicted of murdering her husband could not compel a family allowance from his estate. This court follows the overwhelming weight of authority in this country that a slayer cannot inherit from his victim, or otherwise benefit from the victim‘s death through insurance, joint tenancy, or other interests in the victim‘s property.
But these principles are inapplicable to the case before us. The property in issue, i.e., the vested right to a pension, was not the fruit of crime nor acquired in the pursuance of criminal activity as a policeman. Instead, the felony conviction occurred some 4 years after retirement; the criminal act of which plaintiff had been convicted contributed in no way to the enlargement or aggrandizement of his pension, nor was it proved to have been done in the course of his duty as a Seattle police officer during his 25 years of active duty. The crime had no connection with a police officer‘s
Raising one other point, the city refers to
Finally, we should not overlook the rationale of Tembruell v. Seattle, supra. There a police officer whose pension was discontinued for felony conviction had received a deferred sentence, and the case turned on the question of whether he had been convicted. Because the information was subsequently dismissed, the finding of guilty, we held, did not under the pension laws amount to a conviction; but in reaching that decision and as a part, we think, of the rationale of that case, this court touched upon the very point in issue now:
Thus the statute (
RCW 41.20.110 ) providing for discontinuance of the pension when the recipient has been convicted of any felony must be considered in connection with the rule that the right to the pension is a vested right in the nature of a property; and interpreted so as to avoid working a forfeiture of estate for conviction of a crime.
Tembruell v. Seattle, 64 Wn.2d 503, 506, 392 P.2d 453 (1964).
We must, therefore, conclude that plaintiff‘s rights to a pension vested completely on his retirement; that, al-
Affirmed.
HAMILTON, C.J., FINLEY, ROSELLINI, and HUNTER, JJ., concur.
FINLEY, J. (concurring specially)—I have signed the majority opinion affirming the trial court for the reasons stated therein and for additional reasons of my own, stated briefly as follows:
First, jurisdiction is one of those “weasel words” of the law, and its spectrum of meaning is broad and flexible or viable. Its legal application and significance is too often dependent upon the “eyes of the beholder” in relation to so-called operative facts and circumstances.
Second, I think some of our early decisions concerning declaratory judgment actions, in particular Parr v. Seattle, 197 Wash. 53, 84 P.2d 375 (1938), have spoken loosely or too precipitously about the requirement of service on the state Attorney General as a jurisdictional rather than a more simple, less drastic procedural requirement.
The statutory requirement of service on the Attorney General is undeniably a desirable and constructive one, certainly when a lawsuit puts in issue the constitutionality of a statute enacted by the legislature. This is for the simple reason that more parties than the litigants in a given lawsuit are likely to have some interest in a statute sub-
Viewing service on the Attorney General as a sound and constructive requirement, I agree completely with the majority that this procedural requirement has been waived under the unequivocal circumstances present in this appeal.
Third, there is no doubt in my mind that the plaintiff has standing to litigate the issue of the constitutionality of
Fourth, considering plaintiff‘s vested right and his standing to litigate, and even assuming arguendo some substance to the lack of jurisdiction aspect emphasized in the dissent by STAFFORD, J., the lawsuit should not be voided and dismissed. Shorn of the various aspects of a declaratory judgment action, there still remains a traditional, simple law-
Lastly, it seems to me that dismissal of this action is both inept and circular, and can only result in a second lawsuit and a multiplicity of litigation. This I think very properly and on good legal ground can and should be avoided. For the foregoing rather briefly stated reasons, I have signed and concur in the majority opinion by Hale, J.
STAFFORD, J. (dissenting)—I dissent.
Respondent filed a claim for a declaratory judgment. He alleged that
Appellants, the City of Seattle and the Board of Trustees, make several assignments of error. Each stems from the declaratory relief prayed for and granted by the trial court on the basis of its declaration that
Respondent concedes that his action was brought for a declaratory judgment under
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.
(Italics mine.)
Appellants point out that the claim for declaratory relief and the trial court‘s declaratory judgment are based upon an asserted unconstitutionality of
The right to declaratory relief is purely a creature of statute. We have held in a long series of cases that the provisions of
the objection that the superior court had no jurisdiction of the cause . . . or that the supreme court has no jurisdiction of the appeal, may be taken at any time.
Respondent relies on the above-mentioned statement in an effort to breathe life into the void judgment, hoping thereby to confer jurisdiction upon both the trial court and this court. Such an attempt, at this late date, is legally an exercise in futility. The judgment is void, not voidable. One cannot, in this way, give after-the-fact substance to the type of judgment that has been declared a nullity by our own cases. Further, we not only have held that compliance with
In such cases, courts cannot proceed until all necessary parties, including the attorney general, are served as provided by the act.
(Italics mine.) Parr v. Seattle, supra at 56. Noncompliance with
The majority obtains a contrary result, holding that the Attorney General may waive the jurisdictional issue, citing Roehl v. PUD 1, supra. Unfortunately this end is reached, in part, by a misconception of Roehl‘s meaning. In Roehl the appellant sought an injunction and a declaratory judgment that a statute was unconstitutional. As in the instant case, he failed to serve the Attorney General pursuant to
Not having served a copy of the complaint upon the attorney general, as required by the foregoing statute, appellant did not invoke the jurisdiction of the court in so far as declaratory relief is concerned. Parr v. Seattle, 197 Wash. 53, 84 P. (2d) 375. Lack of jurisdiction to enter the declaratory portion of the judgment does not, however, affect the validity of the portion dismissing the complaint. See Manlove v. Johnson, 198 Wash. 280, 88 P. (2d) 397.
Had the trial court declared the act unconstitutional, it
would be necessary to remand with directions to modify the judgment by deleting such declaration. See Manlove v. Johnson, supra. Since, however, the declaration is to the effect that the act is valid and constitutional, it adds nothing of substance to the relief granted. The constitutionality of the act was at issue in connection with appellant‘s request for injunctive relief. Therefore, the provision of the judgment which calls for dismissal of the action has implicit within it a conclusion of law to the effect that chapter 227, Laws of 1949, is valid and constitutional. It is accordingly unnecessary to remand the judgment for modification.
(Italics mine.)
As previously indicated, declaratory relief is a creature of statute. The instant case was brought as a declaratory judgment action under chapter 7.24 of RCW.
Whether
The trial court should be reversed, without prejudice, for want of proper jurisdiction to entertain the action for declaratory relief.
NEILL, WRIGHT, and UTTER, JJ., concur with STAFFORD, J.