Washington Supreme Court Reports
STATE v. VERHAREN, 136 Wn.2d 888 (1998)
969 P.2d 64
THE STATE OF WASHINGTON, on the Relation of Steven Quick-Ruben,
Petitioner, v. ARTHUR W. VERHAREN, Respondent.
No. 65564-2.
The Supreme Court of Washington. En Banc.
Argued May 19, 1998.
Decided December 24, 1998.
Page 889
[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES
ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE
NOT DISPLAYED.]
Page 890SANDERS and MADSEN, JJ., dissent in part by separate opinion; ALEXANDER,
J., did not participate in the disposition of this case.Appeal from the Superior Court for Pierce County, No. 96-2-13960-8,
Jim Bates, J., on May 16, 1997.Steven Quick-Ruben, pro se.
Edwards, Sieh, Smith & Goodfriend, P.S., by Catherine
Wright Smith, for petitioner.Kurt M. Bulmer, for respondent.
Page 891TALMADGE, 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
Page 892
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.[1] 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.[fn1] 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 46 days.[fn2]
Page 893ANALYSIS
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 Wn. 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.[fn3] 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 Wn.2d 154, 169, 351 P.2d 525 (1960) (citing
cases).[2] 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 Wn. 566,
Page 894
671-75, 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 Wn. at 575. 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. . . .
Page 895. . . .
. . . [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 Wn. at 571-73. See also State ex rel. Brown v.
Warnock, 12 Wn.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 Wn.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 Wn.2d at 850-51 (citations omitted).
Page 896Thus, 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[fn4] 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 ActionIn 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 Wn. 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
Page 897
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 Wn. 657-59 (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,[fn5]
he is entitled to the office without an election.[3] Quick-Ruben's assertion of title in the superior court
position is as illusory as his analysis is confused. In his
reply brief to this Court and in oral argument, Quick-Ruben
Page 898
appears to suggest that the gravamen of his case is that
Verharen was ineligible to file for the office of superior
court judge because he was not a Pierce County resident.
Quick-Ruben contends he never challenged Verharen's
right to complete his existing term of office, and notes his
right to challenge Verharen's eligibility to run under RCW
29.66.010. Quick-Ruben's attempt to transmute a private
quo warranto action into a statutory challenge under RCW
29.65.010 plainly fails.RCW 29.65.010 allows any registered voter to contest the
right of a person declared elected to an office to receive the
certificate of election. Presumably, Quick-Ruben bases his
argument on RCW 29.65.010 (2):Because the person whose right is being contested
was not at the time he was declared elected
eligible to that office.Contests under RCW 29.65.010 are governed by the
procedures of RCW 29.04.030. RCW 29.04.030 (6) requires
that for a challenge to the issuance of a certificate of election
due to error or omission, an affidavit of an elector
must be filed with the court no later than 10 days following
the issuance of the election certificate.[fn6] Verharen apparently
received a certificate of election to the office of
superior court judge. There is no evidence whatsoever in
this record Quick-Ruben invoked the provisions of RCW
29.65.010 or RCW 29.04.030 below, or timely complied with
the statutory procedures. We decline to treat this action as
one challenging Verharen's eligibility to seek the office of
judge, as Quick-Ruben would belatedly have us do.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
Page 899
result of such disqualification would be a vacancy in the office
at the time Verharen ceased to be a Pierce County resident.
See RCW 42.12.010 (4) (providing that an elective office
shall become vacant upon the incumbent ceasing to be
a legally registered voter of the county from which he or
she shall have been elected). WASH. CONST. art. IV, § 5,
provides that such vacancy on the superior court shall be
filled until the next general election by appointment by the
governor, not by allowing the election loser to assume such
office. See also RCW 2.08.120. Cf. State ex rel. Forstell v.
Otis, 131 Wn. 455, 459-60, 230 P. 414 (1924) (noting the
removal of a councilman from the ward for which he was
elected creates a vacancy in such office).[4] 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 S.E.2d at 798-801. See also 29 C.J.S. Elections
§ 243, at 676-77 (1965 & Supp. 1997) (collecting cases at
n. 93) (noting when a majority or plurality of votes are cast
for an ineligible candidate, the fact that the winning
candidate is ineligible and not qualified to take office does
Page 900
not entitle the runner-up to be declared elected to the
contested office).[fn7]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.[fn8]C. Premature Filing
[5] 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
Page 901
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 Wn. at 659. 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 Wn.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.[fn9][6] In light of our disposition of the foregoing issues, we
do not reach the issue of whether residency in a county is a
qualification for the office of superior court judge. While we
Page 902
note (1) the record suggests Verharen was indeed a resident
of Pierce County,[fn10] and (2) such residency may not
even be required for a superior court judicial candidate,[fn11]
we make no ruling on these issues because they were not
decided by the trial court and are not ripe for review.
Department of Ecology v. Acquavella, 131 Wn.2d 746, 759-60,
935 P.2d 595 (1997) (where the trial court made no
finding whether an irrigation district had forfeited a portion
of its water rights, that issue was not ripe for review).
Page 903D. Sanctions and Fees
[7-10] Quick-Ruben challenges the trial court's award of
fees under RCW 4.84.185[fn12] and sanctions under CR 11,[fn13]
urging us to engage in de novo review of the trial court's
decision of this issue. However, the appropriate standard of
review regarding sanctions under the statute or rule is
abuse of discretion. Tiger Oil Corp. v. Department of Licensing,
88 Wn. App. 925, 937-39, 946 P.2d 1235 (1997); Fluke
Capital & Management Servs. Co. v. Richmond, 106 Wn.2d 614,
625, 724 P.2d 356 (1986); Biggs v. Vail, 124 Wn.2d 193,
197, 876 P.2d 448 (1994) (Biggs II). In Biggs v. Vail,
119 Wn.2d 129, 830 P.2d 350 (1992) (Biggs I), we noted RCW
4.84.185, was intended to apply to "actions which, as a
whole, were spite, nuisance or harassment suits[,]" id. at
135, but went on to note:[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. In Biggs I, we reversed the trial court's award
of fees under RCW 4.84.185 because the trial court found
only three of four claims asserted by Biggs to be frivolous.
Page 904
Because the fourth claim advanced to trial, the suit could
not be considered frivolous in its entirety. Thus, fees under
RCW 4.84.185 were not appropriate. Id. at 132, 137. Under
Biggs I, if any claims advance to trial, a trial court's award
of fees under RCW 4.84.185 cannot be sustained.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 Wn.2d at 201.
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 RCW 4.84.186 and CR 11, the trial court
specifically found Quick-Ruben's theory of the case "unfounded
and not based on any reasonable theory of the
law." Clerk's Papers at 373. The trial court also found
"[h]aving standing is fundamental to being able to bring
an action. Mr. Quick-Ruben did not have standing, which
reasonable inquiry would have shown him." Clerk's Papers
at 373. The trial court then concluded: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
Page 905
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 RCW 4.84.185 and CR 11 cannot be said to be an
abuse of discretion.[11] 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 harmed by its actions.
We have repeatedly noted: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 Wn.2d 320, 330, 917 P.2d 100 (1996) (quoting Fay v. Northwest
Airlines, Inc., 115 Wn.2d 194, 200-01, 796 P.2d 412
(1990)); State v. Rolax, 104 Wn.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
Page 906
action for quo warranto was prematurely filed and he was
aware the action was premature. The trial court's award of
fees under RCW 4.85.185 and CR 11 did not constitute an
abuse of discretion and is affirmed. Attorney fees on appeal
under RAP 18.9 (a) are granted to Verharen.DURHAM, C.J., and DOLLIVER, SMITH, GUY, and JOHNSON, JJ.,
concur.[fn1] The trial court did not rule on Quick-Ruben's partial
summary judgment motion to strike Verharen's affirmative defenses
except for residency, nor did it rule on Verharen's cross-motion
for dismissal on the basis that residency is not a requirement
for the office of superior court.[fn2] Quick-Ruben did not pay within 45 days. In an August 3,
1997 letter, Verharen's attorney notified Quick-Ruben's attorney
that if the trial court's prior orders were not complied with by
August 20, 1997, he would seek to force compliance. Quick-Ruben
then noted a final judgment for presentation. Verharen filed a
motion to enforce by contempt the court's previous orders to pay
sanctions. The trial court considered both motions, declined
Quick-Ruben's request to enter a final judgment and granted
Verharen's contempt motion. In so doing, the trial court acted
within its discretion. See In re Marriage of Mathews, 70 Wn. App. 116,
126, 853 P.2d 462 (coercive sanctions imposed for contempt
are within the sound discretion of the trial court and will not
be disturbed absent an abuse of that discretion), review denied,
122 Wn.2d 1021, 863 P.2d 1353 (1993); Moreman v. Butcher,
126 Wn.2d 36, 40, 891 P.2d 725 (1995). See also Marley v. Department
of Labor & Indus., 125 Wn.2d 533, 540-41, 886 P.2d 189 (1994);
State v. Coe, 101 Wn.2d 364, 370, 679 P.2d 353 (1984) (a contempt
judgment will normally stand even if the order violated was
erroneous or was later ruled invalid); Deskins v. Waldt, 81 Wn.2d 1,
5, 499 P.2d 206 (1972). Quick-Ruben then purged the contempt
by making full payment as ordered.[fn3] Quick-Ruben asserted in oral argument that the scope of
the constitutional quo warranto action has not been interpreted
by case law. we note, however, the statutory quo warranto action
in RCW 7.56 at issue in this case is broader than the
constitutional action, which applies to "all state officers." Cf.
CONST. art. IV, § 4 with RCW 7.56.010 and .020 Moreover,
Quick-Ruben did not seek to invoke our original jurisdiction
pursuant to CONST. art IV, § 4. We decline to specify the
parameters of the constitutional quo warranto action here when
the parties have not appropriately raised it. See RAP 12.1(a);
State v. Johnson, 119 Wn.2d 167 170-71, 829 P.2d 1082 (1992)
(argument raised for first time at oral argument is not properly
before the court and need not be considered).[fn4] Quick-Ruben did not file an action for mandamus to compel
the Pierce County Prosecutor to act. The record is devoid of
evidence Quick-Ruben provided information to the prosecutor to
act against Verharen.[fn5] In pertinent part, CONST. art. IV, § 29 provides, in
superior court judicial elections, a candidate may be certified
as elected without the usual full primary and general elections
where only one candidate has filed for the position. See Nuxoll
v. Munro, 104 Wn.2d 456, 458-59, 706 P.2d 223 (1985) (under
CONST. art. IV, § 29, both the primary and the general
election may be dispensed with if only one candidate files for a
superior court position); Fain v. Chapman, 89 Wn.2d 48, 54-55,
569 P.2d 1135 (1977) (same).[fn6] RCW 29.04.030 (1) and (3) allow a party to challenge the
wrongful placement of a person's name on the ballot. Quick-Ruben
never sought to bar placement of Verharen's name on the primary
ballot.[fn7] By contrast, where one asserts title to an elective
office by virtue of being an electoral victor, quo warranto is
the appropriate proceeding for testing such title. State ex rel.
Forstell v. Otis, 131 Wn. 455, 456, 460, 230 P. 414, 415, 416-17
(1924) (quo warranto action is the appropriate proceeding for
duly elected councilman who has been removed from office by the
mayor); Clarken v. Blomstrom, 174 Wn. 612, 613-14, 617,
26 P.2d 87 (1933) (where tie in election for school director is
determined by lot, losing incumbent's challenge to declared
winner's entitlement to such office may be determined only in quo
warranto action); Foulkes v. Hays, 85 Wn.2d 629, 633,
537 P.2d 777 (1975) (citing cases in which quo warranto proceedings were
brought to contest election results independent of statutory
remedies).Similarly, the relator may assert a special interest in
appointive office by a quo warranto action. State ex rel.
Heilbron v. Van Brocklin, 8 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn. App. 141, 142, 622 P.2d 405 (1981), aff'd, 96 Wn.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).[fn8] The remedy of a public quo warranto action through the
prosecuting attorney was available to Quick-Ruben, provided he
convinced the prosecutor or the court through a mandamus
proceeding such action was justified. See Johnson, 59 Wn.2d at
850-51; Brown, 12 Wn.2d at 483-84.[fn9] Once Quick-Ruben's action is prematurely undertaken it is
not cured by later commencement of the term of office or
amendment of the petition. Broyles v. Commonwealth, 309 Ky. 837,
839-40, 219 S.W.2d 52, 54 (1949) (where quo warranto proceeding
to prevent defendant from usurping office of member of board of
education which was to begin on January 3 was prematurely
instituted on January 1, fact that defendant subsequently assumed
the office and petition was thereafter amended would not give
life to the premature petition, and action should have been
dismissed without prejudice). See also 65 AM. JUR. 2D Quo
Warranto § 55, at 268 (1972) ("In quo warranto, as in other
civil proceedings, the cause of action should exist and be
complete when the proceedings are commenced. If instituted before
that time the proceedings are premature, and cannot be given life
by subsequent amendment." (Footnotes omitted)).[fn10] Quick-Ruben asserts Verharen cosigned a refinancing
agreement on his wife's Kitsap County home and filed certain
documents with the Public Disclosure Commission indicating the
Kitsap County house was his home. Verharen argues he has
maintained his abode in Pierce County since 1970. Fiske v. Fiske,
48 Wn.2d 69, 72, 290 P.2d 725 (1955) (a residence once
established is presumed to continue, and the burden is upon him
who asserts a change from a residence once it is established);
Polk v. Polk, 158 Wn. 242, 248, 290 P. 861 (1930) (a residence,
once established, continues until a new one is acquired; a change
of residence does not consist solely in going to and living in
another place, but it must be with the intent of making that
place the permanent residence); accord Sasse v. Sasse, 41 Wn.2d 363,
366, 249 P.2d 380 (1952); In re Estate of Lassin, 33 Wn.2d 163,
165-66, 204 P.2d 1071 (1949); In re Estate of Pugh, 18 Wn.2d 501,
505 139 P.2d 698 (1943). Verharen lived with his first wife
in a house in Tacoma until his 1989 divorce, then moved into a
Tacoma apartment. In May 1990, he bought a 37-foot sloop with
functional galley, head, living and sleeping spaces; moved out of
his apartment and onto his boat and has lived there ever since.
At the time of said purchase, he reported the boat as his new
address to the IRS. He pays a monthly live-aboard fee at the
Tacoma Yacht Club where the boat is moored. Although in August
1992 Verharen married Judge Karen Conoley, who resides in Kitsap
County, both have maintained their separate residences. Verharen
spends two nights a week at his boat, two nights at his wife's
house and splits the weekends between the two. Verharen continues
to receive his mail at his boat address, his driver's license,
car registration and bank checks reflect his boat address, he
remains a registered voter in Pierce County, maintains all his
bank accounts in Pierce County, and pays all living expenses from
same. His banker, doctors, dentist, dry cleaners and insurance
agent are all in Pierce County. He has continued his membership
in various Pierce County organizations; he belongs to no
organizations in Kitsap County.[fn11] CONST. art. IV, § 17 (sets the qualifications for
superior court judges, but does not include county residency).
See also The Journal of the Washington State Constitutional
Convention 1889, at 623 (Beverly Paulik Rosenow ed., 1962)
(noting "qualified elector" and two year residency (in Washington
state or territory) requirements were debated as possible
qualifications for superior court judges and rejected at the
constitutional convention), In re Bartz, 47 Wn.2d 161, 164-67
287 P.2d 119 (1955) (noting Legislature could not add to
constitutional qualifications, and that CONST. art. III, §
25, requiring state officers to be citizens of the United States
and qualified electors, did not apply to the judiciary);
Gerberding v. Munro, 134 Wn.2d 188, 201-10, 949 P.2d 1366 (1998)
(holding qualifications prescribed by the constitution for
constitutional offices are exclusive and may not be added to by
statute absent express constitutional authority to do so).[fn12] RCW 4.84.185 provides:
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.[fn13] CR 11 provides that by signing the pleading the party
and/or attorney certifies:that to the best of the party's or attorney's
knowledge, information, and behef, 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 m the cost of litigationThe sanction for violation of CR 11 may include an award of
reasonable attorney fees.SANDERS, J. (dissenting)
I agree with the majority
except to the extent it affirms the award of attorney fees to
Verharen under RCW 4.84.185, affirms the sanctions
imposed on Quick-Ruben under CR 11, and awards Verharen
attorney fees for his appeal pursuant to RAP 18.9 (a).
Majority at 905-06.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. . . ." RCW
4.84.186. We require the action be, in its entirety, frivolous
and advanced without reasonable cause before reasonable
fees may be awarded, Biggs v. Vail, 119 Wn.2d 129, 134,
830 P.2d 350 (1992) (Biggs I), because litigants should not
fear adverse consequences for reasonably seeking to
judicially vindicate their perceived legal entitlements. See
Fleischmann Distilling Corp. v. Maier Brewing Co.,
386 U.S. 714, 717-18, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967)
(noting that litigation is uncertain and that parties should
not be penalized for defending or prosecuting a lawsuit and
that poor might be unjustly discouraged from instituting
actions to vindicate their rights if the penalty for losing included attorney fees), superseded by statute on other
grounds as stated in Transgo, Inc. v. Ajac Transmission
Parts Corp., 768 F.2d 1001, 82 A.L.R.FED 97 (1985); S.B.
3130, 48th Leg., Reg. Sess. (Wash. 1983) (Statement of
Washington State Bar Association) (commenting favorably
on proposed frivolous civil action statute which it had
developed, but noting that English system of providing attorney
fees to winning side of every lawsuit would have
Page 907
chilling effect on the public's use and access to the judicial
system as a means of settling legitimate disputes). Just
because underlying claims are weak is not to say they are
frivolous. Citizens for Clean Air v. City of Spokane,
114 Wn.2d 20, 39-40, 785 P.2d 447 (1990) (upholding summary
judgment dismissal of appellants' argument, relying upon
well-established Washington case law, but nonetheless refusing
to award attorney fees).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.[fn14]But Quick-Ruben raised a constitutional question of first
impression regarding his right to succeed to the office of
superior court judge if his opponent were disqualified. He
argued he was the only "qualified" candidate in the electoral
contest with Judge Verharen and would necessarily
succeed to Judge Verharen's seat by the operation of law.
See Appellant's Br. at 13 (citing WASH. CONST. art. IV, § 29).
As he had the right to electorally contest the seat, he asserts
he has standing to compel it if the winner in a two-man
race is disqualified. Appellant's Br. at 14. The argument
has a certain logic.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 Wn. App. 461,
466, 773 P.2d 887 (1989).[fn15] Admittedly his argument,
as the majority correctly perceives, was unpersuasive, Majority
at 898, as today we adopt the analysis of the North
Page 908
Carolina Supreme Court which rejected an argument much
like Quick-Ruben's. Majority at 899 (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 899-900 (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 Wn.2d 12, 26, 482 P.2d 775 (1971) (noting when
Page 909
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 RCW 4.84.185. See Hicks v. Edwards, 75 Wn. App. 156,
163, 876 P.2d 953 (1994).CR 11 sanctions are meant to deter frivolous pleadings,
Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994)
(Biggs II), not "chill an attorney's enthusiasm or creativity
in pursuing factual or legal theories." Bryant v. Joseph
Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992) (citation
omitted). The opinion announced today lays to rest
any question as to the validity of Quick-Ruben's theory of
standing, but we must judge the reasonableness of a pleading
not with the benefits of self-fulfilling hindsight but by
examining what was known at the time the pleading was
submitted. Id. at 220. The bottom line is that before today
Washington had not squarely rejected Quick-Ruben's theory.Finally, our decision to impose fees on appeal must also
fail for the same reason. See Cary v. Allstate Ins. Co.,
130 Wn.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
Page 910
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 Wn.2d 427,
442-43, 730 P.2d 653 (1986) (quoting Streater v. White,
26 Wn. 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
Wn.2d at 443. 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 Wn.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 with SANDERS, J.
[fn14] The trial judge dismissed Quick-Ruben's suit on two
grounds: premature filing and lack of standing. However, fees and
sanctions were awarded only on the grounds that Quick-Ruben's
argument on standing was frivolous.[fn15] Quick-Ruben sought direct appeal in this court on the
grounds that it was a quo warranto action and that it raised
important public issues. State ex rel. Quick-Ruben v. Verharen,
No. 65564-2, Statement of Grounds for Direct Review 7 (Wash.
1998). A majority of this court voted to retain jurisdiction of
this case. Id. at Order (Mar. 3, 1998).
Page 911