Leonard v. City of Seattle

Stafford, J.

(dissenting)—I dissent.

Respondent filed a claim for a declaratory judgment. He alleged that RCW 41.20.110 is unconstitutional thus entitling him to reinstatement of his pension, retroactive to the date of its termination by the Board of Trustees of the Seattle Police Department Pension Fund. The trial court granted the declaratory relief prayed for, holding that RCW 41.20.110 is unconstitutional.

Appellants, the City of Seattle and the Board of Trustees, make several assignments of error. Each stems from the declaratory relief prayed for and granted by the trial court on the basis of its declaration that RCW 41.20.110 is unconstitutional.

Respondent concedes that his action was brought for a declaratory judgment under RCW 7.24. It is not denied that RCW 7.24.110 specifically provides:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to he unconstitutional, the attorney general shall also he served with a copy of the proceeding and he entitled to he heard.

(Italics mine.)

Appellants point out that the claim for declaratory relief and the trial court’s declaratory judgment are based upon an asserted unconstitutionality of RCW 41.20.110. Appel *493 lants’ brief specifically states that “. . . the record here does not disclose that any service of proceedings herein has been made on the Attorney General, as required by RCW 7.24.110 whenever a statute is alleged to be unconstitutional.” During oral argument respondent’s attorney frankly admitted his failure to serve the Attorney General with a copy of the proceedings. Apparently the oversight was first discovered when he received appellants’ brief on appeal. Thus, appellants have clearly established respondent’s failure to comply with RCW 7.24.110.

The right to declaratory relief is purely a creature of statute. We have held in a long series of cases that the provisions of RCW 7.24.110 relative to service of the proceedings upon the Attorney General, when the constitutionality of a statute is called in question, are mandatory and jurisdictional. Parr v. Seattle, 197 Wash. 53, 56 , 84 P.2d 375 (1938); Roehl v. PUD 1, 43 Wn.2d 214, 245 , 261 P.2d 92 (1953); In re Bellingham, 52 Wn.2d 497, 499 , 326 P.2d 741 (1958). 1 Similarly, we have held that absent service on the Attorney General, the trial court is without jurisdiction to hear the case. Parr v. Seattle, supra. In Parr, we also held that a judgment obtained without having secured proper jurisdiction is void and therefore a nullity. The same result was reached in In re Bellingham, supra 2 The majority denigrates the importance of the required service by stating the issue was raised for the first time on appeal. That position overlooks ROA 1-43 which provides in part:

the objection that the superior court had no jurisdiction of the cause ... or that the supreme court has no jurisdiction of the appeal, may be taken at any time.

*494 During oral argument an assistant attorney general, who was apparently sitting in court at the behest of one of the parties, stated that the Attorney General’s office had no objection to the manner in which appellants’ counsel had handled the case. We were told that, as a practical matter, parties have honored RCW 7.24.110 more in the breach than in compliance. This, however, is no reason for our condoning such a breach when it is brought to our attention. While the assistant attorney general may have been satisfied with the management of this particular case, the same officer might well have been dissatisfied with the work of appellants’ attorney and lack of service would have prevented his being heard on an important constitutional issue. In either event, the judgment is a nullity for lack of jurisdiction. As pointed out in Clark v. Seiber, 49 Wn.2d 502 , 304 P.2d 708 (1956), the purpose of RCW 7.24.110 is to protect the public, should the parties be indifferent to the result. The state is interested in the constitutionality of its statutes as they affect the public welfare. Parr v. Seattle, supra.

Respondent relies on the above-mentioned statement in an effort to breathe life into the void judgment, hoping thereby to confer jurisdiction upon both the trial court and this court. Such an attempt, at this late date, is legally an exercise in futility. The judgment is void, not voidable. One cannot, in this way, give after-the-fact substance to the type of judgment that has been declared a nullity by our own cases. Further, we not only have held that compliance with RCW 7.24.110 is both mandatory and jurisdictional, but have stated additionally:

In such cases, courts cannot proceed until all necessary parties, including the attorney general, are served as provided by the act.

(Italics mine.) Parr v. Seattle, supra at 56 . Noncompliance with RCW 7.24.110 and the void judgment that results therefrom is clearly a jurisdictional defect that cannot be waived by the Attorney General. In fact, courts that have held as we do, that failure to comply with this section *495 constitutes a jurisdictional defect, have 'also held that the defect may not be waived by any of the parties. Williams v. Moore, 215 Md. 181 , 137 A.2d 193 (1957); Redick v. Peony Park, 151 Neb. 442 , 37 N.W.2d 801 (1949); Stanley v. Mueller, 211 Ore. 198 , 315 P.2d 125 , 71 A.L.R.2d 715 (1957); Holland v. Flinn, 239 Ala. 390 , 195 So. 265 (1940); Langer v. State, 69 N.D. 129 , 284 N.W. 238 (1939); Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923 (1939). See also Zanesville v. Zanesville Canal & Mfg. Co., 159 Ohio 203 , 111 N.E.2d 922 (1953); Wadsworth v. Ottawa County Bd. of Educ., 108 Ohio App. 246 , 161 N.E.2d 404 (1958); Coleman v. Henry, 184 Tenn. 550 , 201 S.W.2d 686 (1947). For us to hold otherwise destroys the purpose of the statute set forth in Clark v. Seiber, supra.

The majority obtains a contrary result, holding that the Attorney General may waive the jurisdictional issue, citing Roehl v. PUD 1, supra. Unfortunately this end is reached, in part, by a misconception of RoehVs meaning. In Roehl the appellant sought an injunction and a declaratory judgment that a statute was unconstitutional. As in the instant case, he failed to serve the Attorney General pursuant to RCW 7.24.110. Unlike the instant case, however, the trial court found the statute constitutional and dismissed the case. Also unlike this case the Supreme Court affirmed the dismissal. A complete quotation from Roehl , at pages 245-46, which is only stated in minor part by the majority, reveals that both the reasoning and the result of the case are contrary to that for which the majority cites the case. The full quotation reads:

Not having served a copy of the complaint upon the attorney general, as required by the foregoing statute, appellant did not invoke the jurisdiction of the court in so far as declaratory relief is concerned. Parr v. Seattle, 197 Wash. 53 , 84 P. (2d) 375 . Lack of jurisdiction to enter the declaratory portion of the judgment does not, however, affect the validity of the portion dismissing the complaint. See Manlove v. Johnson, 198 Wash. 280 , 88 P.(2d) 397.

Had the trial court declared the act unconstitutional, it *496 would be necessary to remand with directions to modify the judgment by deleting such declaration. See Manlove v. Johnson, supra. Since, however, the declaration is to the effect that the act is valid and constitutional, it adds nothing of substance to the relief granted. The constitutionality of the act was at issue in connection with appellant’s request for injunctive relief. Therefore, the provision of the judgment which calls for dismissal of the action has implicit within it a conclusion of law to the effect that chapter 227, Laws of 1949, is valid and constitutional. It is accordingly unnecessary to remand the judgment for modification.

(Italics mine.)

As previously indicated, declaratory relief is a creature of statute. The instant case was brought as a declaratory judgment action under chapter 7.24 of RCW. RCW 7.24.110 makes service of the proceeding on the Attorney General both mandatory and jurisdictional. Failure to comply with RCW 7.24.110 thus renders a judgment null and void. Even though respondent admits his noncompliance with RCW

7.24.110, the majority, nevertheless, has disregarded this jurisdictional defect and has proceeded directly to the merits of the case. As a result, they have affirmed a void judgment.

Whether RCW 41.20.110 is unconstitutional is an issue that is not properly before the court at this time. This is true even though we may ultimately agree with respondent’s position on the merits. Expediency, or the fact that it may be necessary to relitigate the matter with the proper parties before the trial court, is no excuse for disregard of the mandatory and jurisdictional requirements of RCW 7.24.110.

The trial court should be reversed, without prejudice, for want of proper jurisdiction to entertain the action for declaratory relief.

Neill, Wright, and Utter, JJ., concur with Stafford, J.

Accord, 2 L. Orland, Wash. Prac., Trial Practice, § 581, at 616 (3d ed. 1972); 1 W. Anderson, Actions for Declaratory Judgments, § 179, at 345, § 361, at 850-52 (2d ed. 1951); E. Borchard, Declaratory Judgments, 275 (2d ed. 1941); see also Blodgett v. Orton, 14 Wn.2d 270 , 127 P.2d 671 (1942); In re Estate of Bridge, 40 Wn.2d 133 , 241 P.2d 439 (1952).

Accord, 2 L. Orland, Wash. Prac., Trial Practice, § 581, at 616 (3d ed. 1972); 1 W. Anderson, Actions for Declaratory Judgments, § 179, at 345, § 371, at 851-52 (2d ed. 1951); see Roehl v. PUD 1, 43 Wn.2d 214 , 261 P.2d 92 (1953).