State v. Verharen , 136 Wash. 2d 888 ( 1998 )

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 4.84.185. 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discouraged from instituting actions to vindicate their rights if the penalty for losing included attorney fees), superseded by statute on other grounds as stated in Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 82 A.L.R.Fed 97 (9th Cir. 1985); S.B. 3130, 48th Legis., 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 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 373.¹⁴

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).¹⁵ Admittedly his argument, as the majority correctly perceives, was unpersuasive, majority at 898, as today we adopt the analysis of the North 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 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 “Reasonable 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 lawsuit 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 than 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 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 Fersonnel 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.

Reconsideration denied February 1, 1999.

14 The trial judge dismissed Quiek-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.

15 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).