Zachman v. Whirlpool Financial Corp.

869 P.2d 1078, 123 Wash. 2d 667, 1994 Wash. LEXIS 191
CourtWashington Supreme Court
DecidedMarch 24, 1994
Docket60292-1
StatusPublished
Cited by18 cases

This text of 869 P.2d 1078 (Zachman v. Whirlpool Financial Corp.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zachman v. Whirlpool Financial Corp., 869 P.2d 1078, 123 Wash. 2d 667, 1994 Wash. LEXIS 191 (Wash. 1994).

Opinions

[669]*669Johnson, J.

Defendant Whirlpool Financial Corporation (Whirlpool) appeals the denial of a motion to strike the order appointing Judge Thomas as judge pro tempore under article 4, section 7 (amendment 80) of the Washington State Constitution. At issue is whether a previously elected superior court judge who loses reelection is "retired” and therefore eligible to be appointed judge pro tempore without the consent of the parties in a case pending before him at the time of his electoral defeat. We hold the term "retired” includes superior court judges who have been defeated at reelection for the purpose of Const. art. 4, § 7 (amend. 80), and affirm the trial court’s denial of the motion to strike the order appointing Judge Thomas.

In 1987, when this case was originally filed, Judge Thomas occupied the one superior court judge position in Okanogan County. In 1990, Judge Thomas granted Plaintiff's Zachman and Crossler (Zachman) partial summary judgment on the issue of liability, and reserved the issues of damages and class certification. Whirlpool appealed the summary judgment in this court, which was decided on November 25,1992. Zachman v. Whirlpool Acceptance Corp., 120 Wn.2d 304, 841 P.2d 27 (1992). While the appeal was still in this court, Judge Thomas was defeated in his bid for reelection by Jack Bur-chard.

Judge Thomas’s term expired on January 11, 1993. We issued our mandate affirming summary judgment and remanded the case to the Okanogan County Superior Court on February 9, 1993. On February 16, 1993, on the court’s own motion, Judge Burchard appointed Thomas as judge pro tempore in the case. In his order, Judge Burchard noted it would "be a great expense and disservice to the cause of justice and to the parties for a new judge to start over from the beginning”. Clerk’s Papers, at 3.

Whirlpool moved to strike the order appointing Judge Thomas as judge pro tempore on the basis he was not retired for the purpose of Const. art. 4, § 7 (amend. 80), and therefore could not sit without the consent of the parties. Clerk’s Papers, at 18-33. Judge Burchard denied the motion, and [670]*670Whirlpool appealed. The Court of Appeals certified the case to this court.

The appointment of judges pro tempore is authorized by Const. art. 4, § 7 (amend. 80), which reads in pertinent part:

A case in the superior court may be tried by a judge, pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court and sworn to try the case.

Amendment 80 took effect on December 2, 1987, and added a final sentence to section 7:

However, if a previously elected judge of the superior court retires leaving a pending case in which the judge has made discretionary rulings, the judge is entitled to hear the pending case as a judge pro tempore without any written agreement.

Prior to amendment 80, the only source of superior court judge pro tempore authority was the consent of the parties. Burton v. Ascol, 105 Wn.2d 344, 351-52, 715 P.2d 110 (1986). Amendment 80 dispensed with the requirement of consent and "created a new means for appointing a judge pro tempore in a very limited set of circumstances”. State v. Belgarde, 119 Wn.2d 711, 723, 837 P.2d 599 (1992). Because Judge Thomas was "previously elected” and has "made discretionary rulings” in this case, the only circumstance at issue is whether Judge Thomas is a retired judge. Therefore, this case turns on whether the term "retired” as used in Const. art. 4, § 7 (amend. 80) includes superior court judges involuntarily retired by electoral defeat at reelection.

In construing constitutional language, words are given their ordinary meaning unless otherwise defined. State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969) (citing State ex rel. Albright v. Spokane, 64 Wn.2d 767, 394 P.2d 231 (1964)). Whirlpool contends the common, ordinary meaning of the word "retire” is limited to voluntary retirement or retirement due to age or disability. Zachman, on the other hand, asserts the common meaning of the term "retire” is broad enough to include involuntary retirement by electoral defeat.

[671]*671When the common, ordinary meaning is not readily apparent, it is appropriate to refer to the dictionary. American Legion Post 32 v. Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). Webster’s dictionary lists several meanings of the word "retire”, including "to withdraw from office, public station, business, occupation, or active duty”. Webster’s Third New International Dictionary 1939 (1986). The dictionary also lists "to cause to retire” as the definition of the verb transitive form of the word "retire”, and gives the following sentence as an illustration of the appropriate use of the word in context: "[0]nce a man is put on a committee, he stays on it . . . until the voters [retire] him”. Webster’s Third New International Dictionary 1939 (1986). Because the dictionary does not conclusively point to the definition advanced by either party, we rely on principles of statutory construction to determine which definition should be adopted. In re Marriage of Blickenstaff, 71 Wn. App. 489, 494, 859 P.2d 646 (1993) (citing Rozner v. Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991)).

In interpreting a constitutional amendment, the court also examines legislative history and material in the official voters pamphlet. Washington Economic Dev. Fin. Auth. v. Grimm, 119 Wn.2d 738, 743, 837 P.2d 606 (1992). In addition, the court may consider extrinsic evidence of the circumstances that gave rise to the amendment. State ex rel. PUD 1 v. Wylie, 28 Wn.2d 113, 127, 182 P.2d 706 (1947). The interpretation adopted should be one that gives effect to the manifest purpose for which the constitutional provisto a was adopted. Belgarde, 119 Wn.2d at 724 (citing Citizens for Financially Responsible Gov’t v. Spokane, 99 Wn.2d 339, 346, 662 P.2d 845 (1983)).

Amendment 80 evolved from the lengthy and complex water rights cáse Department of Ecology v. Aquavella, 100 Wn.2d 651, 674 P.2d 160 (1983), which was before Yakima County Superior Court Judge Walter Stauffacher. Belgarde, 119 Wn.2d at 723 n.6. In 1986, the litigation was already 5 years old, but still an estimated 5 or 6 years from completion.

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Zachman v. Whirlpool Financial Corp.
869 P.2d 1078 (Washington Supreme Court, 1994)

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Bluebook (online)
869 P.2d 1078, 123 Wash. 2d 667, 1994 Wash. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zachman-v-whirlpool-financial-corp-wash-1994.