State v. Jacobson

558 P.2d 292, 16 Wash. App. 473, 1976 Wash. App. LEXIS 1733
CourtCourt of Appeals of Washington
DecidedDecember 6, 1976
DocketNo. 2072-43469-2
StatusPublished
Cited by3 cases

This text of 558 P.2d 292 (State v. Jacobson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jacobson, 558 P.2d 292, 16 Wash. App. 473, 1976 Wash. App. LEXIS 1733 (Wash. Ct. App. 1976).

Opinion

Petrie, C.J.

In these consolidated appeals the former prosecutor of Pacific County, Anton J. Miller, seeks to oust from office the person who was declared elected to that office in November 1974, Guy M. Glenn.

The first action was initiated on September 18, 1974, 1 day after the primary election. An elector of Pacific County, pursuant to RCW 29.04.030, filed an affidavit charging election error in the Superior Court for Pacific County seeking (1) to prevent the Pacific County Auditor from certifying to the Secretary of State the name of Guy M. Glenn as the nominee of the Democratic Party for the position of Prosecuting Attorney for Pacific County, and (2) to require the auditor, instead, to certify the name of Anton J. Miller as the party nominee for that position.1 The [475]*475elector’s affidavit averred that Guy M. Glenn was not a qualified elector of Pacific County and, thus, he was not qualified either to file for the position or to be certified as the nominee of a political party for that position. Mr. Glenn responded by his own affidavit, asserting his qualifications as an elector of Pacific County, including an allegation that he had been domiciled in Pacific County since 1945 and that he registered to vote there in April 1974.

A hearing on show cause was held before the Honorable John W. Schumacher in Grays Harbor County on September 20, 1974. Based on these two affidavits, and after oral argument, the court concluded that Mr. Glenn met all the qualifications necessary to be a candidate for the office of Prosecuting Attorney for Pacific County and, accordingly, on October 2, 1974, entered an order dismissing the elector’s action with prejudice. The elector timely appealed to the Supreme Court.

The second action was initiated on November 27, 1974, when Mr. Miller, pursuant to RCW 29.65.010, filed a statement of contest in the Superior Court for Pacific County, contending that Mr. Glenn (who had been declared elected) was ineligible to hold the office because at all relevant times he was neither a qualified voter nor elector of Pacific County as mandated by RCW 36.16.030 and 36.27.010.2 Accordingly, Mr. Miller sought to annul and set [476]*476aside the ■ election insofar as it provided the basis, upon which Mr. Glenn was declared to have been elected to the office of Prosecuting Attorney for Pacific County and, in lieu thereof, to obtain an order of the court holding “that your contestant be held to have been elected to said office át said election.” Mr. Glenn’s answer sought to dismiss the election contest and, in addition, sought an order directing Mr. Miller to vacate the office on Monday, January 13, 1975, the expiration date of his existing term of office.

The matter was tried before the Honorable Gerry L. Alexander on January 9 and thereafter the court entered findings, conclusions, and an order dismissing the contest and permanently enjoining Mr. Miller from interfering with the office of Prosecuting Attorney for Pacific County beginning January 13, 1975. Mr. Miller filed a timely appeal to the Supreme Court.

Both appeals were consolidated by order of the Supreme Court, and on October 7, 1975, the consolidated cause was transferred to this court for resolution of the issues presented.

The precise relief sought by the elector in the first action is not available at this late date. Even if we agreed entirely with the elector’s contentions, it would serve no useful purpose for us to order Mr. Glenn’s name stricken from the ballot for the election which was conducted in November 1974. When the ballots were prepared in 1974, the auditor had no final order of a court to instruct her as to whose name should appear on the November ballot; the matter was then pending in the Supreme Court of this state. Accordingly, we would ordinarily dismiss the appeal from the [477]*477order dated October 2, 1974, entered in the action which was based on RCW 29.04.030.

Nevertheless, the mere fact that the auditor placed Mr. Glenn’s name on the ballot—and that he received a majority of the votes cast for the office of prosecuting attoméy— does not prevent Mr. Miller, as a registered voter in Pacific County, from pursuing the statutory remedy provided by RCW 29.65.010 and from pursuing the challenge to Mr. Glenn’s eligibility under any other statutory remedy which was adequately preserved and which has not yet been fully litigated.

Under RCW 29.65.010, the issue is whether or not Mr. Glenn was eligible to the office of Prosecuting Attorney for Pacific County “at the time he was declared elected.” Mr. Miller contends that Mr. Glenn’s eligibility must be determined not only as of the date he was declared elected, but also as of the time he filed his declaration of candidacy. We.agree with Mr. Miller. In a series of post-primary but pregeneral election cases, the Supreme Court has determined that a candidate for office must be eligible for that office at the time he files his declaration of candidacy. State ex rel. Reynolds v. Howell, 70 Wash. 467, 126 P. 954 (1912); State ex rel. Willis v. Monfort, 93 Wash. 4, 159 P. 889 (1916); and Defilipis v. Russell, 52 Wn.2d 745, 328 P.2d 904 (1958). Because of the pendency of the first action that issue is still before us.

We turn, then, to inquire into those requirements of eligibility. The statutory requirements imposed by RCW 36.16.030 and 36.27.010 are that a candidate for the office of prosecuting attorney must be: (1) a person entitled to practice law in this state (see State ex rel. Willis v. Mon-fort, supra); (2) a qualified elector of the county in which he seeks the office (RCW 36.27.010) and (3) a qualified voter of the county in which he seeks the office (RCW 36.16.030).

Mr. Glenn’s status as an active member of the Washington State Bar Association, thus entitling him to practice law in this state, is not challenged. Nor does Mr. Miller [478]*478challenge the fact that Mr. Glenn filed his declaration of candidacy on July 30,1974. The trial court found in part:

That Defendant [Glenn] is over the age of 18 years, is a United States Citizen, and that he is an elector of Pacific County and of the State of Washington.
In April 1974 he registered to vote in Pacific County, Washington and on June 28, 1974, he returned to live in Pacific County, Washington where he has so resided until the present time.

(Italics ours.)

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Cite This Page — Counsel Stack

Bluebook (online)
558 P.2d 292, 16 Wash. App. 473, 1976 Wash. App. LEXIS 1733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jacobson-washctapp-1976.