State Ex Rel. Quick-Ruben v. VerharenState Ex Rel. Quick-Ruben v. Verharen
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
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
Steven Quick-Ruben (Quick-Ruben) filed a summons and information in quo warranto on December 23, 1996, seeking 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.
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
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, 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:
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.
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
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 the respondent to show his title to the office. But when a private individual seeks to recover an office in his own right, we think he must plead and prove title thereto in himself. ...
. . . .
The language of the statute, “whenever he claims an interest in the office,” would seem to demonstrate the necessity for pleading title in the one bringing the action and seeking relief. We know of no reason why an individual plaintiff in actions of this kind, ... should not assume the burden of showing his title to that which he seeks to recover. A mere citizen, a voter or a taxpayer has no right to maintain such an action. It must be brought under the statute officially by the prosecuting attorney, or it must be brought by a person who claims an interest in the office; and the relator, having failed to allege facts showing that he was elected to fill the unexpired term of Mayor Edwards, has failed to show an interest in the office which he seeks.
He, as mayor-elect for the regular term to begin on the first Monday of June, 1932, has no right to question the title of Mayor Harlin to the office of mayor in the interim. That can only be done by the prosecuting attorney or by some one who asserts an interest in the particular term now enjoyed by Mayor Harlin.
Dore, 167 Wash. at 657-59, 9 P.2d 1087 (some emphasis ours). Thus, Quick-Ruben had to prove a present special interest in the Pierce County Superior Court Department 1 position to which he claimed title in order to sustain a private quo warranto action.
The basis of Quick-Ruben‘s asserted title to the superior court position is his claim that he is “constitutionally entitled to the office” under the following rationale: At the time of filing for the office of superior court judge, Quick-Ruben was a qualified candidate for the superior court and Verharen was not because he was not a resident of Pierce County; as no election is required under CONST. art. IV, § 29, for a race with only one qualified judicial candidate,5 he is entitled to the office without an election.
Because the person whose right is being contested was not at the time he was declared elected eligible to that office.
Contests under
In fact, had Quick-Ruben successfully challenged Verharen‘s eligibility to file for the superior court, it would have also affected Verharen‘s entitlement to serve the remainder of his term in office. If Quick-Ruben were correct that Verharen was no longer a Pierce County resident and such residency was constitutionally mandated, the result of such disqualification would be a vacancy in the office at the time Verharen ceased to be a Pierce County resident. See
Quick-Ruben points to no authority which would confer the office on an opponent who was defeated in the prior election by a candidate who failed to meet constitutional eligibility standards. Instead, Quick-Ruben‘s electoral defeat actually deprived him of any argument he had a special interest in the office. In People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978), the North Carolina Supreme Court rejected the same “entitlement to office” theory advanced by Quick-Ruben here, and held the result of the vote favoring the petitioner‘s opponent, while not effective to give the opponent legal entitlement to the office due to his age ineligibility, was nonetheless legally effective in excluding the petitioner from entitlement to that office; noting the one clear result of the election was that the voters rejected the petitioner. Having thus been defeated in the election, the petitioner had no legal right to assume office by virtue of the election. Duncan, 294 N.C. at 716-721, 242
Quick-Ruben failed to show any special interest in the office of Pierce County superior court judge. Having failed to establish such special interest, he has thus failed to meet his burden to sustain the private quo warranto action he chose to pursue.8
C. Premature Filing
An additional, and equally compelling, reason for dismissal of Quick-Ruben‘s private quo warranto action is that it was prematurely filed in December 1996 before the term of office in which Quick-Ruben was interested commenced. Quick-Ruben was advised of this problem by opposing counsel and given the opportunity to dismiss the action, refile it after Verharen‘s term commenced, and serve process on opposing counsel. He declined. In order to sustain a private quo warranto action he had to plead and prove a present special interest in the public office in question. In Dore, we held Seattle‘s mayor-elect had no right to question the title of the interim mayor to that office before the mayor-elect‘s term began, holding:
That can only be done by the prosecuting attorney or by some one who asserts an interest in the particular term now enjoyed by [the interim mayor].
Dore, 167 Wash. at 659, 9 P.2d 1087. Under Quick-Ruben‘s own theory, his alleged special interest in the office did not accrue until the commencement of the term for which he ran as a candidate. Accord State ex rel. Tennent v. Tollefson, 4 Wash.2d 194, 198, 103 P.2d 36 (1940) (recognizing that a suit to try title to a publicly elected office of mayor would fail if pursued before the term in question commenced). Because he filed his private quo warranto action on December 23, 1996, prior to the January 13, 1997 commencement of the judicial position‘s term, he had no present special interest to assert when the action was filed and the trial court properly dismissed Quick-Ruben‘s action.9
D. Sanctions and Fees
Quick-Ruben challenges the trial court‘s award of fees under
[T]he language and the history of the frivolous lawsuit statute (
RCW 4.84.185 ) are clear. The lawsuit, as a whole, that is in its entirety, must be determined to be frivolous and to have been advanced without reasonable cause before an award of attorneys’ fees may be made under the statute.
Id. at 137, 830 P.2d 350. In Biggs I, we reversed the trial court‘s award of fees under
With respect to an award under CR 11, we noted in Biggs II:
[I]n imposing CR 11 sanctions, it is incumbent upon the court to specify the sanctionable conduct in its order. The court must make a finding that either the claim is not grounded in fact or law and the attorney or party failed to make a reasonable inquiry into the law or facts, or the paper was filed for an improper purpose.
Biggs II, 124 Wash.2d at 201, 876 P.2d 448.
Here, although the trial court‘s May 15, 1997 order did not rule on all five of the motions before it, the order clearly dismissed the case based on Quick-Ruben‘s lack of standing and premature filing. Unlike Biggs I, no claim survived to trial. Furthermore, in its June 13, 1997 order regarding fees pursuant to
2. The evidence before the court at the time of the motion establishes that Mr. Quick-Ruben‘s position on standing was untenable. When he filed an action in which he either knew or should have known that he lacked standing, his action was frivolous and was advanced without reasonable cause. An award of attorney fees is appropriate under
RCW 4.84.185 .3. Reasonable inquiry by Mr. Quick-Ruben and his counsel would have shown that the theory that Mr. Quick-Ruben had standing, advanced in the summons and complaint and in subsequent pleadings, was not well grounded in fact nor was it warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. Mr. Quick-Ruben and his counsel violated CR 11 and sanctions are warranted.
Clerk‘s Papers at 373-74. As the trial court met the requirements of Biggs I and II, its award of fees and sanctions under
In a separate section of his brief, Judge Verharen requests an award of attorney fees on appeal pursuant to RAP 18.9(a) which provides an appellate court may order a party who “files a frivolous appeal” to “pay terms or compensatory damages” to any party
An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.
Presidential Estates Apartment Assocs. v. Barrett, 129 Wash.2d 320, 330, 917 P.2d 100 (1996) (quoting Fay v. Northwest Airlines, Inc., 115 Wash.2d 194, 200-01, 796 P.2d 412 (1990)); State v. Rolax, 104 Wash.2d 129, 136, 702 P.2d 1185 (1985).
While we are reluctant to assess fees lest we be viewed as “protecting one of our own,” Quick-Ruben had no standing to pursue this private quo warranto action, and he actually filed the action prematurely. Quick-Ruben‘s continuation of a meritless claim through appeal entitles Verharen to attorney fees on appeal. RAP 18.9(a).
CONCLUSION
The trial court properly dismissed Quick-Ruben‘s private quo warranto action because he lacked standing. Quick-Ruben failed to plead and prove a special interest in the Pierce County superior court judge position, an essential predicate to a private quo warranto action. Moreover, his action for quo warranto was prematurely filed and he was aware the action was premature. The trial court‘s award of fees under
DURHAM, C.J., and DOLLIVER, SMITH, GUY and JOHNSON, JJ., concur.
SANDERS, J., dissenting.
I agree with the majority except to the extent it affirms the award of attorney fees to Verharen under
An award of reasonable attorney fees may be made “upon written findings by the judge that the action ... was frivolous and advanced without reasonable cause....”
The trial judge in the case at hand predicated his attorney fee award upon finding that Quick-Ruben did not have standing to bring this action, and the “fact” that “[a]ny reasonable amount of research” would have established this. Clerk‘s Papers (CP) at 373.1
Moreover the argument is of constitutional magnitude, debatable, and a matter of first impression for this state, and thus could not be “frivolous” as that term has been previously defined. See Moorman v. Walker, 54 Wash.App. 461, 466, 773 P.2d 887 (1989).2 Admittedly his argument, as the majority correctly perceives, was unpersuasive, Majority at 69, as today we adopt the analysis of the North Carolina Supreme Court which rejected an argument much like Quick-Ruben‘s. Majority at 69-70 (citing People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796, 798-801 (1978)). And I also find comfort in the result because, as the majority notes, the same is supported by a host of citations from other jurisdictions. Majority at 69-70 (citing 29 C.J.S. Elections § 243, at 676-77 (1965 & Supp.1997) (collecting cases at note 93)). But it is precisely because this authority is merely persuasive and not controlling which makes Quick-Ruben‘s assertion of standing—while mistaken—legitimate, and not frivolous. Certainly the fact that other jurisdictions with other case law and other constitutional or statutory imperatives have rejected Quick-Ruben‘s argument does not make it frivolous as we are not bound by this precedent but must start afresh.
More importantly, I am troubled by the implication of a finding of fact that “any reasonable amount of research” would have established Quick-Ruben‘s lack of standing. It is simply untenable to conclude an attorney in Washington is obligated to find, consider, and then conclude our court is necessarily bound by any analogy to nonbinding decisions in other jurisdictions.
The point is illustrated by a comparison of the North Carolina Duncan case to the case at bar. The plaintiff-relator in Duncan brought his argument under state statute, not the state constitution. Duncan, 242 S.E.2d at 798. Additionally, the North Carolina Supreme Court, unlike this court, was constrained by the binding precedent of earlier state case law holding that a person receiving less votes in an election is not entitled to office upon determination that the winner of the election was unqualified. Id. at 799. These are distinguishing factors.
Moreover Quick-Ruben properly addressed the standing question under the plain language of our constitution. Under such circumstances the trial court‘s conclusion of law that the action was frivolous was untenable and an error of law requiring reversal. See State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971) (noting when trial court‘s action is untenable it is an abuse of discretion).
The trial court‘s award of sanctions under CR 11 was also predicated on the problematic assertion that “[r]easonable inquiry by Mr. Quick-Ruben and his counsel” would have shown that his theory of standing was not well grounded in fact nor warranted by existing law. CP at 375.
This, of course, is the same justification considered above and must fail for the same reasons. The distinction of the trial court between an award for a frivolous law suit and the sanctions awarded under CR 11 is without a difference as a debatable issue of first impression raising a constitutional question is no more a violation of CR 11 then it is a violation of
CR 11 sanctions are meant to deter frivolous pleadings, Biggs v. Vail, 124 Wash.2d 193, 197, 876 P.2d 448 (1994) (Biggs II), not
Finally, our decision to impose fees on appeal must also fail for the same reason. See Cary v. Allstate Ins. Co., 130 Wash.2d 335, 347-48, 922 P.2d 1335 (1996) (declining to award fees on appeal where case of first impression raised debatable issue of substantial public impression).
Any inquiry about whether an appeal is only frivolous is guided by five considerations: (1) A civil appellant has a right to appeal; (2) all doubts as to the frivolity of an appeal are resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an affirmation based on the rejected arguments does not render the appeal frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and every claim is so totally devoid of merit that there was no reasonable possibility of reversal. Green River Community College Dist. No. 10 v. Higher Educ. Personnel Bd., 107 Wash.2d 427, 442-43, 730 P.2d 653 (1986) (quoting Streater v. White, 26 Wash.App. 430, 434-35, 613 P.2d 187 (1980)).
In Green River we denied a request for attorney fees despite the fact that the appeal culminated over 10 years of conflict involving two appearances before this court and before the Higher Education Personnel Board over a dispute involving less than 20 working hours for three employees, an excess of effort we described as “[s]uch an obdurate course of behavior [that it] is directly at odds with the best interests of the employees, the college, and the public.” Green River Community College Dist., 107 Wash.2d at 443, 730 P.2d 653. But we chose not to award fees because, in the midst of the tumult, a meritorious argument on an issue unresolved by this court was raised and “[w]e cannot say that there were ‘no debatable issues upon which reasonable minds might differ.‘” Id. (quoting Boyles v. Department of Retirement Sys., 105 Wash.2d 499, 509, 716 P.2d 869 (1986) (Utter, J., concurring in part, dissenting in part)).
Quick-Ruben‘s argument on standing, however weak, was not devoid of merit. While I otherwise agree with the majority‘s analysis and conclusion, I am constrained to refrain from asserting others might not reasonably differ. The trial court‘s award of fees was an abuse of discretion, and a further award of fees on this appeal compounds the error.
MADSEN, J., concurs.
ALEXANDER, J., not participating.
Notes
Similarly, the relator may assert a special interest in appointive office by a quo warranto action. State ex rel. Heilbron v. Van Brocklin, 8 Wash. 557, 36 P. 495 (1894) (where mayor, under authority of city charter, removes member of public works board, and appoints his successor, quo warranto by officer removed against such successor is proper remedy, to review proceedings of the mayor); State ex rel. Niggle v. Kirkwood, 15 Wash. 298, 299-300, 46 P. 331 (1896) (proper remedy of one removed from the post of police commissioner by the mayor is by quo warranto proceedings against the incumbent appointed as his successor); Kimball v. Olmsted, 20 Wash. 629, 56 P. 377 (1899) (challenge to entitlement to office by physician appointed and then removed by mayor from city board of health may be pursued only by quo warranto); State ex rel. Davis v. Johns, 139 Wash. 525, 248 P. 423 (1926) (former regent of state university brings quo warranto action to settle title to office of regent where he was appointed and later removed by governor to such office); State ex rel. Peter v. Geisness, 140 Wash. 300, 248 P. 421 (1926) (court affirms trial court‘s dismissal of duly appointed police judge‘s assertion of entitlement to office by quo warranto action against his successor where successor was appointed by new mayor and commissioners); Municipal Court ex rel. Tuberg v. Beighle, 28 Wash.App. 141, 142, 622 P.2d 405 (1981), aff‘d, 96 Wash.2d 753, 638 P.2d 1225 (1982) (quo warranto was proper statutory procedure to test right of duly appointed, but subsequently dismissed, magistrate and his successor to that position).
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense.
that to the best of the party‘s or attorney‘s knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The sanction for violation of CR 11 may include an award of reasonable attorney fees.