Fritz v. Gorton

Hale, C.J.

(concurring in part; dissenting in part) — I concur in and have signed the majority opinion and dissent only to that part of it which sustains section 40 (4), (Laws of 1973, ch. 1, § 40 (4) p. 28) which I think is unconstitutional and invalid. Section 40 (4), in purporting to authorize any person to maintain an action in the name of the state against any elected official, candidate or lobbyist and to share in the penalties recovered does not, in my opinion, fall within the recognized limitations of the qui tam doctrine, but, on the contrary, grossly exceeds them. Accordingly, while holding the initiative generally constitutional, I would affirm the trial court’s decision that section 40 (4) is unconstitutional.

Section 40(4) grants to persons, neither appointed nor elected, virtually unlimited powers not elsewhere vested in the disclosure commission, the Attorney General or the prosecuting attorneys of the state. For example, it is doubtful, whether, under the act, the commission may directly maintain court actions for the enforcement of the act, either in its own name or that of the State of Washington *317 in view of section 36(5) which empowers the commission only “Upon complaint or upon its own motion, [to] investigate and report apparent violations of this act to the appropriate law enforcement authorities.” The commission’s powers appear to be limited by section 36 (7) directing that the commission shall “Enforce this act according to the powers granted it by law.” Ultimate enforcement of the enactment is entrusted to actions by the commission, the Attorney General, or any of the several prosecuting attorneys of the state. This is so except for section 40 (4) which presumably without restraint fixes a major power of enforcement in any person who wishes to do so and assures a pecuniary reward if the action is successful. The powers thus conferred to share in the public treasury under a claim of enforcing the statute now vested in “any person” far exceed those of the public officials charged by law with its enforcement — the right to a share of the penalties collected. All that section 40 (4) requires of “any person” who may bring suit against any candidate, elected official, or lobbyist is that he first give notice of a simple belief that the initiative is being or has been violated.

The section goes far beyond the limitations generally applicable to qui tarn actions. It is not limited to those who claim some special damage or disability by reason of a violation; nor as a reward for services performed to the state as an informer, or in capturing a criminal; nor for services rendered the state in preserving its domain — all in advance of and as a necessary predicate to maintaining the action. Rather, it exceeds the recognizable limitations of qui tarn by purporting to grant to private persons who, aside from bringing the action, have rendered no service whatever to the state, entered into no contract with the state, nor unilaterally performed a contract with it.

Thus, “any person” harboring or merely asserting to harbor such a belief may, in the name of the State of Washington, bring suit against any or all public officials wheresoever they may be situate, and from whatsoever motive— *318 whether lofty or low, for high purpose or self-gain, from malice, ill will or political advancement — even to a demand that the award in which he will share shall be trebled as punitive damages (section 40(5)), subject only to the rather nebulous limitation that he might be required to pay costs and a reasonable attorney’s fee if the defendant prevails.

In case of an insolvent plaintiff, this restriction amounts to little or no restriction whatever, and lays open all public officials, candidates and lobbyists to the unlimited burdens of defending both in' money and time in unlimited litigation. Section 40(4) thus, to the detriment of the constitutional executive powers vested in the Attorney General, the prosecuting attorneys, and the disclosure commission, and in trespass of those powers, transfers a substantial quantum of the executive power from elective and lawfully appointed officers to “any person” who chooses to exercise them — and gives such person a share in the state treasury to boot.

Section 40 (4) of the initiative is unconstitutional, therefore, because the powers accorded to “any person” in this state are so sweeping and unrestrained as to vest major powers of government in individuals in derogation of the executive power vested by the constitution in officials elected by the people.

Section 40 (4) says:

Any person who has notified the attorney general in writing that there is reason to believe that some provision of this act is being or has been violated may himself bring in the name of the state any of the actions (hereinafter referred to as a citizen’s action) authorized under this act if the attorney general has failed to commence an action hereunder within forty days after such notice and if the attorney general has failed to commence an action within ten days after a notice in writing delivered to the attorney general advising him that a citizen’s action will be brought if the attorney general does not bring an action if the person who brings the citizen’s action prevails, he shall be entitled to one-half of any judgment *319 awarded, and to the extent the costs and attorney’s fees he has incurred exceed his share of the judgment, he shall be entitled to be reimbursed for such costs and fees by the State of Washington: Provided, that in the case of a citizen’s action which is dismissed and which the court also finds was brought without reasonable cause, the court may order the person commencing the action to pay all costs of trial and reasonable attorney’s fees incurred by the defendant.

Thus, the section allows “any person” to share in the penalties collectible by the sovereign State of Washington for violations of the initiative as prescribed by section 39 (1) (c) which subjects “Any person who violates any of the provisions of this act ... to a civil penalty of not more than ten thousand dollars for each such violation” and 39 (1) (d) which renders liable “Any person who fails to file a properly completed statement or report within the time required by this act . . . to a civil penalty of ten dollars per day for each day each such delinquency continues.”

In construing section 40, the first question which arises is whether the powers it purports to accord the Attorney General and the prosecuting attorneys of the state are similarly vested in any person maintaining the private action in the name of the state under section 40(4). Section 40(2) purports to give the Attorney General of the state and the prosecuting authorities of the political subdivisions of the state powers not yet accorded those officials elsewhere, i.e., the powers to summon individuals before them and order them to answer under oath. The initiative thus says that the Attorney General and prosecuting attorneys may require persons reasonably believed to have information concerning the activities of any individuals covered by the act to appear at a designated time and place and to give information under oath and “to produce all accounts, bills, receipts, books, papers, and documents which may be relevant or material to any investigation authorized under this act.” Section 40 (3) says that the Attorney General and the prosecuting authorities of any of the state’s political subdivisions may do this merely by issuing and delivering an *320 order “setting forth the time when and the place where attendance is required,” and that “[s]uch order shall have the same force and effect as a subpoena, shall be effective state-wide, and . . . may be enforced by any superior court judge in the county where the person receiving it resides ... in the same manner as though the order were a subpoena.” Powers heretofore thought to rest only in the judiciary, i.e., the power to compel one to submit to examination under oath, is thus sought to be vested in the prosecuting attorneys and the Attorney General of the state.

Does this mean, in section 40 (4), that “Any person who has notified the attorney general” that he believes the act is being violated succeeds to the purported powers conferred upon the Attorney General and the prosecuting attorneys of the state when the Attorney General declines to maintain the action officially? If given a fair interpretation, the act is susceptible of such a construction; it purports to clothe any individual in the state who may choose to exercise them, with powers not only of an attorney general or prosecuting attorney but with those of a judge or a duly constituted grand jury. Although the power to compel the testimony under oath has not in this state thus far been vested by law in the Attorney General or the prosecuting attorneys but has been thought limited by the constitution to the courts and judicial officers, the initiative measure before us apparently purports to grant those very powers to private citizens.

Section 40 (4), I think, not only seeks to transfer a major judicial power to the executive branch but goes one degree further and seeks to vest it in individuals not elected by the people, that is, any person who wishes to maintain an action for his private benefit.

In establishing and perpetuating the government of the State of Washington, the people expressly reserved to themselves the power to elect their major public officers, including the judiciary, the Attorney General and the pros *321 ecuting attorneys. They have set up and have steadfastly maintained a system of government based on free elections. While the duties and powers of elective officials whose offices have been established by the constitution may be prescribed by the legislature or by the people through the initiative and referendum, it follows that their major functions cannot be destroyed or usurped by or transferred to nonelective offices or individuals short of amending the constitution.

The Attorney General and the prosecuting attorneys of the several counties who may have been granted extraordinary powers under section 40 of the act hold executive offices created by the constitution. They must be elected by the people. Const. art. 3, § 1, establishing the executive branch of government, states:

The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature.

(Italics mine.)

Section 21 of article 3 provides, inter alia:

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

It thus follows that the Attorney General must be elected by the people and, as the legal adviser of state officers, his powers cannot constitutionally be circumvented nor abridged by the establishment of other offices with purported powers to assume his duties, responsibilities and authority.

The same principle applies to the prosecuting attorneys of the several counties. Const. art. 11, § 5, reads:

The legislature, by general and uniform laws, shall provide for the election in the several counties of . . . prosecuting attorneys . . . And [the legislature] *322 shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession.

The duties of the prosecuting attorney have been prescribed by statute. RCW 36.27.020. They have been legislatively enlarged from time to time. Among his many duties, a prosecuting attorney is expressly required to prosecute all criminal and civil actions in which the state or his county may be a party, defend all suits brought against the state in his county, and prosecute actions “for the recovery of debts, fines, penalties, and forfeitures accruing to the state or his county.” RCW 36.27.020(4). He is expressly authorized to attend, appear before, give advice to the grand jury “and draw all indictments when required by the grand jury.” RCW 36.27.020(5). No part of the fines, penalties, or forfeitures can inure to his private benefit. See Const, art. 11, § 5 and Const. art. 3, § 21, and State ex rel. Stratton v. Maynard, 35 Wash. 168 , 76 P. 937 (1904). If he intends to subject another to compulsory examination under oath he must summon him before a grand jury or before a special inquiry judge. RCW 10.27.

I would doubt that the legislature or the people by initiative may accord to nonelective officials or private persons either the power to recover debts, fines, penalties or forfeitures accruing to the state or county or the power to take charge of a grand jury, much less the right to share in the debts, fines, penalties and forfeitures so collected in the name of the state.

Accordingly, insofar as section 40 (4) ousts the prosecut- ■ ing attorneys and the Attorney General of their constitutionally held powers and authority, and transfers a substantial quantum of such powers to any person who has “reason to believe that some provision of this act is being or has been violated,” it is an unconstitutional and invalid exercise of legislative power. The section (40(4)) not only gives such private person “one-half of any judgment *323 awarded.” but “to the extent the costs and attorney’s fees he has incurred exceed his share of the judgment, he shall be entitled to be reimbursed for such costs and fees by the State of Washington.” In purporting to enable any such person, merely upon his claim or assertion that he harbors a belief that someone has violated the initiative, to sue on behalf of the State of Washington for his private gain to recover such civil penalties as may be awarded, the initiative contravenes the constitutional provision that those who exercise the power of the executive branch must be elected by the people or lawfully appointed by their constitutional offices. That this section trespasses upon the right of the people to elect their Attorney General and the prosecuting attorneys is apparent from cases decided by this court: In State ex rel. Hamilton v. Troy, 190 Wash. 483, 486 , 68 P.2d 413 , 110 A.L.R. 1211 (1937), the legislature, through an enactment of Laws of 1937, chapter 100, p. 406, sought to change the official title of the office of prosecuting attorney to district attorney. In holding this statute unconstitutional and void, this court said:

The matter before us appears trifling at first sight, and is, in fact, of slight importance, in so far as direct consequences are concerned. But, as suggested by the relator, if the legislature has the power to change the name of one constitutional office, it has the power to change the name of any and all. The matter would appear of greater consequence if, for example, instead of the act under consideration, we had before us an act changing the title of governor to dictator or czar. But, wholly aside from these practical considerations, there is a principle involved of first importance. There is a constitutional inhibition, and, although it arises by implication, it is fully as compelling as it would be if directly expressed.

As a basis for holding the act unconstitutional, this court there cited Const. art. 11, § 5, which prescribed, inter alia, that the office of prosecuting attorney shall be an elective office. Acknowledging that the prosecuting attorneys of the state earnestly desired the proposed change of name, this court said:

[I]t is plainly our duty to hold that the legislature, act *324 ing alone, had no power to make it, and that the [statute was] inoperative and of no effect.

Changing the name of the office of prosecuting attorney to district attorney, we held constituted an amendment and that, under article 23 of the state constitution, the constitution “can only be amended by a two-thirds vote of both branches of the legislature, subsequently followed and confirmed by a vote of the people.” State ex rel. Hamilton , at page 487. We therefore declared the statute invalid. This rationale, of course, applies with equal force to initiatives as well as to statutes enacted by the legislature.

The second case is even more persuasive. State ex rel. Johnston v. Melton, 192 Wash. 379 , 73 P.2d 1334 (1937), involved a challenge to section 4 of the same statute (Laws of 1937, chapter 100, § 4, p. 406) that was challenged in State ex rel. Hamilton v. Troy, supra. The law purportedly authorized the district attorney to appoint as many investigators as would be necessary to administer the affairs of the office of district attorney and to enforce the law. Section 4 of the statute gave these investigators the same authority as the county sheriff to make arrests anywhere in the county and to serve warrants, writs, subpoenas and all other criminal process. It provided explicitly that such investigators “shall not be under the authority and direction of the sheriff, and shall only be under the authority and direction of the said District Attorney.”

Again citing Const. art. 11, § 5, because it provided for the election of county sheriffs as well as for prosecuting attorneys, this court held the act authorizing such powers in the district attorney’s investigators to be unconstitutional and void. We referred to State ex rel. Egbert v. Blumberg, 46 Wash. 270 , 89 P. 708 (1907), in State ex rel. Johnston v. Melton, supra at 383, saying:

It was held in that case that § 4, chapter 133, Laws of 1903, p. 247, attempted to create the office of county fruit inspector and was unconstitutional and void, because it provided that the office should be filled by appointment instead of by election.

*325 We pointed out, too, in State ex rel. Johnston v. Melton, supra, that the statute in question purported to accord to the district attorney’s investigators powers to make arrests which even the prosecuting attorneys did not themselves possess, and that in creating the office of investigator, the statute purported to give them powers independent of both the prosecuting attorney and the sheriff. We said, at page 385:

Furthermore, the powers thus granted are powers which the people of the state expressly provided in the constitution should be executed only by persons elected by themselves. The people are the source of all governmental power, and, in setting up a constitutional government, they provided that certain of their powers should be exercised through county governments, governments close to the people; and they further provided, in § 5 of Art. 11 of the constitution, that the powers to be thus exercised through county governments should be exercised only through officials elected by themselves. In § 5 of Art. 11, they named the officers whom they then thought needful, county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and, being mindful that this is a world of continual development and change, they provided that the legislature might create other county offices as public convenience might require. In 1924, moved by reasons of economy, they provided, by the twelfth amendment, that, in certain classes of counties, one person might exercise the power and perform the duties of two or more offices; but these persons, as well as the incumbents of newly created offices, are as rigidly subject to election as the officers originally named in the constitution.

The marked similarity between that statute and section 40(4) under inquiry should not go unobserved for where that statute gave to the investigators authority which the prosecuting attorneys did not possess, and powers independent of those of the elective sheriff, too, section 40 (4) likewise gives private citizens powers not possessed by either the elected Attorney General or elected prosecuting attorneys, i.e., the power to collect and receive public penalties and civil fines.

*326 This court clearly, in that opinion, as I would here, based its ruling of unconstitutionality not only upon the creation of a nonelective office by statute, with power to usurp the functions of elected officials, but also on the ground that the statute breached the separation of powers doctrine, a doctrine upon which our whole constitutional system of government rests. We said, at page 392:

But the argument has more in it than that. James Madison said, in the 47th number of The Federalist:

“The accumulation of all powers, legislative, executive', and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

To keep these powers as separate as humanly possible was the studied effort and dominant purpose of the framers of each. and every one of our American constitutions, both state and Federal. This court has said, in In re Bruen, 102 Wash. 472 , 172 Pac. 1152 , that the courts have ever been alert and resolute to keep the legislative, executive, and judicial functions carefully separated, and that to this is due the steady equilibrium of our governmental system; and, while we might not declare § 4 of the act unconstitutional for this reason alone, it is one of the reasons which impels us to do so.

One may search all aspects of section 40 (4) and find no limitations whatever upon the powers of the private citizen to sue or maintain an action against any candidate, public official, or lobbyist. All that is required is that the plaintiff serve upon the Attorney General a notice that there is reason to believe any one or all of the prospective targets are violating or have violated the initiative and that the plaintiff intends to bring an action for himself and for the state 10 days after the expiration of the 40-day period within which the Attorney General may initiate suit, for the purpose of recovering one-half of any judgment which the state in a proper case could recover. This claim, of course, may include a demand for treble damages under section 40 (5) upon a finding that the alleged violation was intentional. However groundless the private citizen’s asser *327 tions of the violations may be, section 40(4) requires no more of a predicate for his private action than that the Attorney General decline to bring the action. Should the Attorney General decline to bring the action because it appears either groundless or frivolous or inspired by personal animus or is purely political, the private citizen under section 40 (4) succeeds to the powers of Attorney General. And, in addition, the private citizen will acquire a larger right in the lawsuit than does either the public prosecutor or the Attorney General because he will obtain one-half of all of the sums which, if recovered by the Attorney General or the prosecuting attorney, would as a matter of law inure to the treasury of the State of Washington.

The point made in State ex rel. Johnston v. Melton, supra, that the courts must zealously guard and keep separate "the powers of government should be kept in mind here. Section 40(4), authorizing the private collection of money for the violation of a public law, in my opinion, thus presumes to authorize not only a trespass upon the judicial power and the power of grand jurors to conduct inquiries under oath, but invests in private citizens the powers of the publicly elected prosecuting attorneys and Attorney General.

The initiative thus in section 40 (4)' takes a complete stranger to its purposes and empowers him to act for and on behalf of the state and all of its citizens not only to enforce the penal provisions of a civil statute but for private pecuniary benefit. In addition to the Attorney General, the prosecuting attorneys of the several counties, the Public Disclosure Commission, the grand juries and special inquiry judges charged by law with the duty of enforcing the initiative, section 40 (4) purports to empower private persons to act at their private whim whether for malice, private gain, or for purely political reasons on behalf of the state and in its name. It clothes the plaintiffs with powers of government reserved by the constitutions to the elective executive and judicial branches of government. I do not *328 think that the qui tana doctrine as delineated in the majority opinion or elsewhere should be permitted to override and nullify the separation of the powers of government so explicitly delineated in the state constitution.

Although the state has an interest in the enforcement of this initiative as it has in enforcing all laws, that interest does not warrant reposing unconstitutional powers in private citizens. It could as readily be said that the state has the same interest in recovering judgments for breach of contract or for tortious damage to its property, but it is quite unlikely that it could constitutionally oust its constitutional officers of their powers by authorizing private citizens to maintain private actions in the name of the state for private gain solely for the purpose of protecting the state’s interests. The people in their constitution have already established public offices to assert and sustain the state’s interests and except by amending the constitution these powers cannot be constitutionally transferred to private citizens.

In short, section 40(4) without limit purports to clothe innumerable private citizens acting solely upon their own volition or motivated by whim, caprice or malice to a share in the executive powers of government, that is to say, the power to sue in the name of the state for the recovery of pecuniary penalty which, by law, and of right, ought to be recovered into the state treasury. Section 40 (4) gives private citizens a carte blanche authority and delivers into the hands of persons neither lawfully elected nor appointed the sovereign executive powers of the state to sue in its own name for the benefit of all of the citizens.

Section 40 (4) is and should be held unconstitutional and void.

Hunter, J. — I concur in the dissent only of this opinion.

Rosellini, J. — I concur that section 40 (4) is unconstitutional.