State v. Herrmann ( 1977 )

Dolliver, J.

Predicated upon the State Auditor's Report of Examination No. 3306, filed by the State Auditor on January 23, 1976, and related investigation, Attorney General Slade Gorton, pursuant to RCW 43.09 and RCW 43.88.160, filed a civil suit for damages against then State Insurance Commissioner Karl Herrmann and others. This suit alleged several causes of action involving malfeasance, misfeasance and/or nonfeasance in office on the part of Herrmann and others.

This matter is before us on appeal from a denial by the trial court of Herrmann's application for a writ of mandamus directing the Attorney General to appoint a Special Assistant Attorney General to defend the Insurance Commissioner.

On May 7, 1976, Herrmann wrote the Attorney General asserting that "[Y]ou are required by both the Washington State Constitution and the statutes of our state to be the lawyer for me as State Insurance Commissioner." Herr-mann cited RCW 4.92.060 and RCW 4.92.070 and stated: "There can be no doubt, therefore, that I am entitled to legal representation at the expense of the taxpayers in the same way as these same taxpayers are burdened by the cost of your endeavors."

On May 10, 1976, Gorton responded to the request by Herrmann as follows:

You have requested that I also appoint a special assistant attorney general to represent you in State v. Herrmann, et al., Thurston County Superior Court No. 54529. Such an appointment cannot be made. First, the 1975 amendment (Chapter 126, Laws of 1975, 1st Ex. Sess.) referred to in your letter only authorizes the defense of tort and civil rights actions under 42 U.S.C. § 1981 et seq. and does not authorize the defense of all actions which may be commenced against state employees. Second, the statute does not authorize the providing of the cost of defense by the state for employees when the state itself has initiated the action. Third, you will note that the 1975 statute requires that the employee has acted in good faith and it is readily apparent from the Complaint filed in this action that there is no way in which I can find that your actions which formed the basis for this suit were performed in good faith.

There was one more exchange of correspondence in which Herrmann, through his deputy commissioner, requested reconsideration by Gorton. The request was refused.

On July 14, 1976, Herrmann applied for a writ of mandamus in the Thurston County Superior Court.

The sole question before us is whether, in a civil action for damages brought by the Attorney General against a state elected official, that state elected official is entitled to a defense by the Attorney General. After thorough consideration of the relevant constitutional and statutory provisions, we must conclude that he is not.

Any representation of the defendant by the Attorney General is dependent upon the constitution and statutes of Washington and it is to them we turn. See State v. O'Connell, 83 Wn.2d 797, 812, 523 P.2d 872 (1974).

Const. art. 3, § 21, reads in relevant part as follows:

The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.

Plaintiff, citing State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958), raises the question as to whether, as a statutory rather than a constitutional officer, the Insurance Commissioner has a right to any representation conferred by article 3, section 21. We need not discuss this contention since representation in legal proceedings for state elected officials, state officers and state employees is provided by a statutory scheme enacted by the legislature in accordance with article 3, section 21. The constitutional provision is not self-executing. State v. Gattavara, 182 Wash. 325, 47 P.2d 18 (1935).

The first statute to be considered is RCW 43.10.030(3) which provides the Attorney General shall:

Defend all actions and proceedings against any state officer or employee acting in his official capacity, in any of the courts of this state or the United States;

(Italics ours.) This 1888 territorial statute, first passed in statehood in 1891 (Laws of 1891, ch. 55, § 2(3), p. 95), remained virtually unchanged until 1975 when the italicized words or employee acting were added. Laws of 1975, ch. 40, § 5(3), p. 63.

The next pertinent statutes (RCW 4.92.060 and .070) were passed in 1921 as Laws of 1921, ch. 79, §§ 1, 2, p. 220.

Both RCW 4.92.060 and RCW 4.92.070 were substantially and significantly amended in 1975 by Laws of 1975, ch. 40, p. 61, and Laws of 1975, 1st Ex. Sess., ch. 126, p. 473. The statutes, as amended, and which are presently in effect read:

Whenever an action or proceeding for damages shall be instituted against any state officer, including state elected officials, or employee ((for the performance^ of any official act)), arising from his acts or omissions while performing, or in good faith purporting to perform, his official duties, such officer or employee may request the ((administrative board)) attorney general to authorize the defense of said action or proceeding at the expense of the state.

(Italics ours.) Laws of 1975, ch. 40, § 1, p. 62, and Laws of 1975, 1st Ex. Sess., ch. 126, § 1, p. 473, now RCW 4.92.060.

If the ((administrative board)) attorney general shall find that said officer or employee's ((acted m good faith and without negligence,)) ((it shall grant)) acts or omissions were, or purported to be in good faith, within the scope of his official duties, said request shall be granted^ in which event the necessary expenses of the defense of said action or proceeding shall be paid from the appropriations made for the support of the department to which such officer or employee is attached. In such cases the attorney general shall appear and defend such officer or employee, who shall assist and cooperate in the defense of such suit.

Laws of 1975, ch. 40, § 2, p. 62, and Laws of 1975, 1st Ex. Sess., ch. 126, § 2, p. 473, now RCW 4.92.070.

The substitution of the attorney general for the administrative board was accomplished by Laws of 1975, ch. 40, §§ 1, 2, p. 62. All other amendments were contained in Laws of 1975, ch. 126, §§ 1, 2, p. 473.

It should be added that the intent of the legislature was to have the term including state elected officials apply in RCW 4.92.070 whenever the term officer was used. See Substitute Senate Bill No. 2133, Senate Journal, 44th Legislature (1975), at 1233.

This is an action for damages. Thus, RCW 43.10-.030(3) does not apply and the cases cited by defendant, State ex rel. Dunbar v. State Bd. of Equalization, 140 Wash. 433, 249 P. 996 (1926), and Reiter v. Wallgren, 28 Wn.2d 872, 184 P.2d 571 (1947), are inapposite. Dunbar was an action in mandamus to determine whether the Attorney General must bring suit against a state officer. Reiter was an action for injunctive relief. Neither involved damages. Furthermore, we have found no case where relief was sought involving RCW 43.10.030(3) where the action was in damages.

The appellant also argues that RCW 43.10.040, RCW 43.10.067 and RCW 48.02.080 provide the Insurance Commissioner with a statutory right to a defense at public expense. Both RCW 43.10.040, which provides for representation by the Attorney General of the state officials, boards, commissions and agencies, and RCW 43.10.067, which restricts the employment of attorneys by state officials and agencies, were passed in 1941 as part of Laws of 1941, ch. 50, p. 116. It is clear that the purpose of Laws of 1941, chapter 50 was to end the proliferation of attorneys hired by various state agencies and place the authority for representation of state agencies in the Attorney General. See State v. Gattavara, supra; Letter of former Attorney General Smith Troy (served 1941-53) before Senate State Government Committee, January 31, 1977. RCW 48.02.080 provides for legal assistance for the Insurance Commissioner in enforcing the insurance code. None of these statutes is applicable to the fact situation before us.

It is apparent from the legislative scheme set forth in the previously quoted statutes that, when an action or proceeding in damages is brought against any state officer, employee or state elected official, the procedures contained in RCW 4.92.060 and .070 apply. The question then is whether RCW 4.92.060 and RCW 4.92.070, which have not previously been interpreted by this court, entitle Karl Herrmann to representation.

From 1921 to 1975, when an action or proceeding for damages was instituted against a state officer or employee, two steps had to be taken: (1) The officer or employee had to request the administrative board, consisting of the Governor, as chairman, and "the directors of the several departments" (then RCW 43.17.080), to authorize the defense of the action or proceeding at the expense of the State (RCW 4.92.060); and (2) if the board found the "officer or employee acted in good faith and without negligence," the statute provided "it [should] grant said request." RCW 4.92.070. The administrative board was abolished by Laws of 1975, ch. 40, p. 61.

The 1975 amendment to RCW 4.92.060 and .070 made several changes in the 1921 act: (1) State elected officials are specifically included; (2) the request for defense goes to the Attorney General instead of the administrative board; and (3) rather than the previous requirement that the administrative board find the officer or employee "acted in good faith and without negligence," the 1975 amendments provide that, if the Attorney General "shall find" the "acts or omissions were, or purported to be in good faith, within the scope of his official duties" the "request [for defense] shall be granted" by the Attorney General.

The Insurance Commissioner in his letter of May 7, 1976, properly applied for defense under RCW 4.92.060, the only statute authorizing defense of a state elected official who is being sued for damages. At that time, the Attorney General was required to make a determination whether the acts or omissions of the Insurance Commissioner (1) were within the scope of the Commissioner's official duties, or (2) were purported to be in good faith within the scope of the Commissioner's official duties.

In his response of May 10, 1976, the Attorney General wrote:

[Y]ou will note that the 1975 statute requires that the employee has acted in good faith and it is readily apparent from the Complaint filed in this action that there is no way in which I can find that your actions which formed the basis for this suit were performed in good faith.

The sole judge under the statute as to whether an employee acted or purported to act in good faith within the scope of his duties is the Attorney General. Previously, this decision was at the sole discretion of the administrative board which had to find, additionally, that the employee acted without negligence. The Attorney General has held Karl Herrmann did not meet the test of the statute. Although the test and the decision maker have changed, the discretionary nature of the relief has not.

Furthermore, defendant concedes that, since under RCW 4.92.130, also amended in 1975, any claim adjudicated against an employee under RCW 4.92.070 would be paid by the State from the tort claims revolving fund, the defense by the Attorney General of a state employee sued in damage by the State was not contemplated by the legislature.

We hold that, in an action for damages brought by the State against a state elected official, state officer or employee, where the Attorney General fails to find that the acts or omissions of the elected official, officer or employee were or were purported in good faith to be within the scope of his official duties, then the defense of this action shall not be at the expense of the State.

Affirmed.

Wright, C.J., and Hamilton, Stafford, Utter, Brach-tenbach, and Horowitz, JJ., concur.