Page 1

' .. -
SUPERIOR COURT OF WASHINGTON
COUNTY OF SPOKANE
,
W'
-lAWRENCE CRONIN
VIRG1'NIQCRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
vs.
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO.
FILED
'JUL 25 2011
TMOMAfi A. fAU.OlliST
SI'IOltAf'lt; CtJL'!lt!'y d!.ER!<
11203051-]
SUMMONS
TO THE RESPONDENTS: SPOKANE POLICE DEPARTMENT, CITY OF SPOKANE
A Petition for a Writ of Mandamus has been filed to compel you in the above-named court by
LAWRENCE CRONIN, VIRGINIA CRONIN, RICHARD HANSON, MICHAEL WALTERS and DOUGLAS
TURNER, hereinafter referred to as "Petitioners". A copy of Petitioners' Petition is served upon
you simultaneously with this Summons. This Summons and the attached Petition serves as
notice pursuant to RCW 7.16.190.
If you do not agree with this Petition, to defend against it, you must take action consistent with
RCW Chapter 7.16 or otherwise respond to the complaint by stating your defense in writing,
and serve a copy upon the person signing this summons within 20 days after the service of this
summons, excluding the day of service, or a default judgment may be entered against you
without notice. A default judgment is one where the Petitioners are entitled to what they ask
for because you have not responded. If you serve a notice of appearance on the undersigned
person, you are entitled to notice before a default judgment may be entered.
Any response or notice of appearance which you serve on any party to this Petition must be
filed by you with the court and with the Petitioners.
If you wish to seek the advice of an attorney in this matter, you should do so promptly so that
your written response, if any, may be served on time. This Summons is issued pursuant to Rule
4 of the Superior Court Rules.
SUMMONS Page 1
Petitioners: Cronin, Hanson, Walters and Turner
Address 6116 E. Big Meadows Rd.,
Chattaroy, WA 99003

Page 2
t, ,'Ii
Dated this of July, 2011.

LAWRENCE CRONIN




RICHARD HANSON ,1:-

MICHAEL WALTERS
SUBSCRIBED AND SWORN to before me this-=Z:..LJ __ day of July, 2011.
SUMMONS - page 2
in and for the State
of Washington.
My Commission expires: i!J/;zi ILf

Page 3
SUPERIOR COURT OF WASHINGTON
COU NTY OF SPOKAN E
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
vs.
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
I. Relief Requested
FILED
fJUl 25 20a
NO.
11203051-7
PETITION FOR WRIT OF MANDAMUS
Petitioners, seek issuance of a Writ of Mandamus to compel Respondents, the Spokane Police
Department, City of Spokane, to enforce the homicide laws of the State of Washington:
We seek a Writ of Mandamus for the purpose of mandating that the Spokane Police
Department enforce the homicide laws and investigate the deaths of children, who are human
beings and persons from conception, at Planned Parenthood, 123 E. Indiana in Spokane,
Washington; that they do so as they would in any other type of unlawful homicide investigation
involving any other human beings or persons and that any type of subsequent legal actions
taken to enforce the homicide laws be similar in nature to any actions taken in any other such
enforcement of these laws with any other human beings or persons.
Petitioners: Cronin, Hanson, Walters and Turner
Address 6716 E. Big Meadows Rd., Chattaroy, WA 99003
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Page 4
The reasons this Petition for Writ of Mandamus is being filed:
1. The Police have a clear duty to enforce the homicide laws of the State. This duty is
imperative and not discretionary; and,
2. having requested the Police to enforce the homicide laws at Planned Parenthood and as
they have refused to do so, we have no plain, speedy and adequate remedy in the
ordinary course of the law; and,
3. the benefits to the petitioners, local society, the Police and the society at large of
stopping the homicides of innocent children at Planned Parenthood in Spokane,
Washington are profound, positive for all of us and too great to calculate. The benefits
of a single human life to each of us are never ending and cannot be summarized. One
cannot calculate the value of one's own life or of someone else's, i.e., Anne Frank,
Emmett Till, Harriet Beecher Stowe, Mohandas Gandhi, Earl Warren, Ronald Davies,
Nelson Mandela, Mother Teresa, Harry Jaffa, anyone's daughter, son or friend, etc ..
A human life is sacred and invaluable; the right to this life is the foundation of all of our
laws and our country. Everyone is negatively affected by the homicides of innocent
children. The Petitioners have a right, most would sayan obligation, to report the
homicides of innocent children in the community. All persons are negatively impacted
when the Police Department, the agency legally authorized to protect human life, does
not protect human beings and persons in the community. Death destroys the people.
The Petitioners have Standing by virtue of the preceeding and other arguments embodied
within this Petition.
II Statement of Facts/Statement of Grounds
The Petitioners did individually on June 17
th
, July 5
th
and July 21,2011 make official requests of
the Spokane Police Department, 1100 W. Mallon Ave., Spokane, WA. Each petitioner spoke
with a police officer on duty and attempted: to file a homicide report, request an investigation
of ongoing homicides and seek police action to enforce the homicide laws and stop the
homicides occurring at Planned Parenthood, 123 E. Indiana Ave., Spokane, WA. See Affidavits
of Lawrence Cronin, Virginia Cronin, Richard Hanson, Michael Walters and Douglas Turner,
Exhibits A, B, C, D and E.
Each petitioner reported unlawful homicides occurring at Planned Parenthood within the City
of Spokane. Each Petitioner was told that no report or investigation could be undertaken,
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Page 5
either verbally or in writing, as under the Abortion Laws of Washington State, abortions at this
facility would not be investigated as homicides. The Police refused to take any action to enforce
the homicide laws, attempt to stop the homicides at this organization or to investigate them.
The Police affirmed that abortions currently take place at Planned Parenthood. See Affidavits,
Exhibits A,B,C, D and E, Id.
The Washington State Department of Health indicates that 1761 abortions took place in
Spokane County{many of them being performed at Planned Parenthood) in 2009, the last year
for which statistics have been published: Washington State Department of Health, 'Abortion
Data', available at http://www.doh.wa.gov/EHSPHLlCHS/chs-data/abortion/abormain.htm (last
visited July 2,2011). Planned Parenthood, Spokane, WA states that it provides abortions on its
website: Planned Parenthood of Spokane, WA, 'Abortion Services', available at
http://www.plannedparenthood.org/health-center/centerDetails.asp?f=2794
(last visited July 2, 2011).
III Statement of Issues! Argument
The Spokane Police Department has a clear duty to enforce all laws passed by the State
Legislature, including the homicide laws. The Police have a clear duty to abide by the
Declaration of Independence and the Constitution of the United States. The Spokane Police
Department have a "Vision: "To become the safest city of our size in America" and a "Mission:
Working together to build a safe community", Spokane Police Department,
'SPD Mission, Vision, Values Statement' available at
http://www.spokanepolice.org/leftnav/directorv/default.aspx(last visited July 2, 2011).
The Spokane Police Department's most important role is the protection of human beings. In
filing this Writ we support the police in fully enforcing all Washington State Laws including the
homicide laws.
The justification for this Writ is based on the following two legal arguments. Each of these
arguments will be discussed in the course of this document.
A. The Spokane Police Department must legally enforce the Washington State homicide
laws against Planned Parenthood, according to Washington Revised Code(RCW)
9A.32.010-9A.32.070 (2010); 9A.08.010 and the Ninth, Tenth and Fourteenth
Amendments to the Constitution of the United States.
1. Homicide laws: The terms IIhuman being" and "person" are written in the law, but have
not been defined. Because these terms have not been defined, the Spokane Police
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Department is not in a legal position to define them, or assume that they have a clear or
certain meaning. Because these terms have not been defined, the Spokane Police
Department does not have the authority to interpret the homicide laws as excluding
certain human beings or persons, from conception to death.
2. Abortion laws: The Spokane Police do not have the authority to assume and carry out
their duties as though all terms describing the "unborn", including "fetus" and "embryo"
do not have the same meaning as "human being" and "person". They do not have the
authority to decide that these terms do not legally describe human beings and persons
provided "equal protection under the law".
3. Conflict between the two laws: The Spokane Police Department does not have the
authority to choose which laws it may enforce and which laws it may not enforce, even
if certain laws are in conflict with one another. The police have the responsibility to
protect Public Safety and to err on the side of human life when it is at stake. Their
definition of "human being" and "person" must encompass all living "human beings"
and "persons" when enforcing the homicide laws.
B. The Spokane Police Department, by not enforcing the Washington State homicide
laws against Planned Parenthood, is in violation of The Declaration of Independence
and the Constitution of the United States.
A. The Spokane Police Department must legally enforce the Washington State homicide
laws against Planned Parenthood, according to Washington Revised Codes(RCW)
9A.32.010-9A.32.070 (2010); 9A.08.010 (2010), and the Ninth, Tenth and Fourteenth
Amendments to the Constitution of the United States.
1. Homicide laws. RCW 9A.32 (2010)
Homicide Defined. RCW 9A.32.010 ( 2010)
"Homicide is the killing of a human being by the act, procurement, or omission of another,
death occurring at any time, and is either (l)murder, (2) homicide by abuse, (3) manslaughter,
(4) excusable homicide, or(S) justifiable homicide."
Manslaughter in the first degree. RCW 9A.32.060 (2010)
"(1) A person is guilty of manslaughter in the first degree when:
(a) He recklessly causes the death of another person; or
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(b) He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon
the mother of such child."
(2) Manslaughter in the first degree is a dass A felony."
General Requirements of Culpability. RCW 9A.08.010 (2010)
"(l){b){c): RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of
and disregards a substantial risk that a wrongful act may occur and his or her disregard of
such substantial risk is a gross deviation from conduct that a reasonable person would
exercise in the same situation."
Discussion of Homicide: RCW 9A.32.0l0 (2010)
The term homicide literally means man-killer, i.e, "homo"(man) and "cide"(killer). In the case of
the homicide laws, the police are assuming that they know who " man", "human beings" and
"persons" are. However, none of these terms have been defined legally. Therefore, the police
do not know the meaning of these terms and do not have the legal authority to define them.
As "human being" and "person" have not been legally defined, they cannot enforce the laws in
an equal and just manner, as required by the Equal Protection Clause of the Fourteenth
Amendment ofthe Constitution: UNo State shall make or enforce any law which shall abridge
the privileges or immunities of citizens ofthe United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." United States Constitution, Amendment XIV,
Section 1. The police cannot and are not enforcing the homicide laws equally as they do not
know who a human being or person is.
The Supreme Court and State Legislature have also not defined that born individuals are "menu,
"human beings" or "persons", In current law and Court case history there have never been
legal definitions ofthe "born" and uunborn", "person" and "non-person" as applies to the
homicide laws. We must conclude therefore, that legally, a human being's life has not been
defined as more than one "part", based on time or other factors, but is one-ongoing human life,
from a person's conception to a person's death. The police have no legal authority to assume
otherwise.
Discussion of Manslaughter in the first degree. RCW 9A.32.060 (l)(b) (2010)
" He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the
mother of such child."
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This law defines "child" by virtue of whether the mother has felt the child moving inside of her,
which is known as llquickening". "Quick" is a vague legal term, as quickening can occur anytime
between the 13
th
week and the 25
th
week after conception.
As an example of the lack of clarity that this definition provides, consider the following:
according to this homicide law-- a person who assaulted a woman in her 16
th
week of
pregnancy would be guilty of the crime of homicide only if the woman who had been assaulted
had felt her child move. A mother at the same stage of pregnancy, who did not feel her same
age child, or did not admit to feeling the sensation, could not have the killer of her unborn child
arrested and brought to justice. In enforcing this law, therefore, the police and/or the mother,
must make the subjective judgment as to whether this child was "quick" or not. Together, they
define "human being" or "person" and who might enjoy the protection guaranteed by law. A
mother stating that she has felt her 16 week old "unborn quick child" has therefore now
defined and protected her "unborn child".
The definition of llhuman being" in this situation is determined by the sensory experience of the
mother prior to or during the assault, rather than the fact of the movement of the child.
However, current medical testing makes a definition of "human life" based on the mother's
perception of movement obsolete. Ultrasound imaging techniques allow us to see clear
movement in the reflexes of the fetus at 6 weeks and thumb-sucking as early as 7 weeks
gestation age.
Though the sensations of the mother are variable and subjective, the reality of the "unborn
human" child remains constant. Therefore, what of the mother who felt her child move after
the assault? What of the mother who did not "feel" her child move? What of the lIchild" in
both of these cases?
The police do not enforce any other homicide laws based on the report of movement prior to
or during an assault of someone. A person in a coma, or a person too ill to move, are not
deprived of their right to protection from homicide based on their lack of movement. We are
unaware of any such cases. And we are not aware of any other law which allows lawful killing
vs. "unlawful killing" on the basis of the lack of movement of an individual. Rather, medical
authorities look at lack of heart beat, lack of brain waves and other indicators to determine
whether human life continues to exist.
The Fourteenth Amendment states, "nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws". U.S. Constitution, Amendment XIV, Section 1. In this police
enforcement action there is a clear violation of equal protection under the manslaughter law by
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the Spokane Police. The police are protecting children who are alive, but only if they are being
felt by their mothers. They are not protecting living children of mothers who do not feel
movement.
It is a violation ofthe Fourteenth Amendment for the police to enforce the manslaughter law
without a definition of the terms used in it and the police cannot define the terms. The police
cannot enforce this law when they are speculating as to whom they are protecting. The police
cannot enforce it constitutionally because the law:
cannot be applied equally to all unborn children;
cannot be applied equally to all pregnant mothers;
cannot be applied equally to all other persons, including those born, who do or do not
"quicken" or move;
cannot be applied equally to those who commit the assault.
2. Abortion laws. RCW 9.02 (2010)
Reproductive Privacy-Public Policy. RCW 9.02.100 (2010)
"The sovereign people hereby declare that every individual possesses a fundamental right of
privacy with respect to personal reproductive decisions.
Accordingly, it is the public policy of the state of Washington that:
(1) Every individual has the fundamental right to choose or refuse birth control;
(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as
specifically limited by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902;
(3) Except as specifically permitted by RCW 9.02.100 through 9.02.170 and 9.02.900 through
9.02.902, the state shall not deny or interfere with a woman's fundamental right to choose
or refuse to have an abortion; and
(4) The state shall not discriminate against the exercise of these rights in the regulation or
provision of benefits, facilities, services, or information."
Right to have and provide. RCW 9.02.110 (2010)
"The state may not deny or interfere with a woman's right to choose to have an abortion prior
to viability of the fetus, or to protect her life or health."
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Definitions. RCW 9.02.170 (2010)
For purposes of this chapter:
"(1) "Viability" means the point in the pregnancy when, in the judgment of the physician on the
particular facts of the case before such physician, there is a reasonable likelihood of the fetus's
sustained survival outside the uterus without the application of extraordinary medical
measures.
(2) "Abortion" means any medical treatment intended to induce the termination of a pregnancy
except for the purpose of producing a live birth."
Discussion of Reproductive Privacy: RCW 9.02.100 (2010)
When we asked the police to enforce the homicide laws at Planned Parenthood, the reason
they gave to us as to why they would not do so was because of the abortion laws.
The homicide laws cannot be enforced in an equal and just manner by the Spokane Police
Department because of the abortion laws and the Supreme Court decision regarding abortion,
Roe v. Wade and subsequent decisions, which have upheld this decision. As a result of Roe v.
Wade and the Washington State Abortion laws, the police assume that certain unborn children
are not Ithuman beings" and not "persons". The police act as if they know who "human beings"
and "persons" are, although they cannot know, as these legal terms have not been defined in
either set of laws.
Neither the U.S. Supreme Court, Washington State Supreme Court nor the State of Washington
Legislature have defined "human being" and "person". The Supreme Court refused to do so
with these famous words:
"Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the State
has a compelling interest in protecting that life, from and after, conception.
We need not resolve the difficult question of when life begins. When those
trained in the respective disciplines of medicine, philosophy, and theology are
unable to arrive at any consensus, the judiciary, at this point in the
development of man's knowledge, is not in a position to speculate as to the
answer." Roe v. Wade. 410 U.s. 113, 159-160,93 S.Ct. 705, 730. {1973}.
The Supreme Court had the clear opportunity to decide who a "person" was and they declined.
They abandoned their obligation to be the final judge: they decided not to decide who is a
Ithuman being" or who is a "person". However, they did not say that they lacked the power to
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make such a decision. The courts do have the power to make such decisions, as we will discuss.
Rather, they claimed that to do so would be "speculation". It is the duty of judges to be the final
arbiters of all legal decisions in our land. This is the Constitutional purpose of the judiciary. This
must be so in matters of life, death and the equal protection of the public, as it is performed by
the Spokane Police Department. The consequences of the Court's lack of decision does not
mean that others can make this decision, including the Spokane Police Department.
Relevance of the Dred Scott Decision
The Court's ability and power to define and decide who is a human being, who is a person, and
how to enforce the laws related to human beings and persons is not a new legal concept. The
Supreme Court debated whether a certain race of individuals, "Negros" or African-Americans,
were "human beings" in the infamous case, Dred Scott v. Sandford. The Court decided that it
had the right to decide whether a Negro (African-American) was a citizen to whom all rights
pertained and it made a decision.
Chief Justice Taney stated, "The words 'people of the United States' and 'citizens' are
synonymous terms, and mean the same thing.", at the beginning of his majority opinion.
Dred Scott v. Sandford, 60 U.S. 393,404.(1856).
According to Chief Justice Taney,
"They show that a perpetual and impassable barrier was intended to be erected
between the white race and the one which they had reduced to slavery, and
governed as subjects with absolute and despotic power, and which they then
looked upon as so far below them in the scale of created beings, that
inter-marriages between white persons and negroes or mulattoes were
regarded as unnatural and immoral, and punished as crimes, not only in the
parties, but in the person who joined them in marriage. And no distinction in
this respect was made between the free negro or mulatto and the slave, but
this stigma, ofthe deepest degradation, was fixed upon the whole race."
"We refer to these historical facts for the purpose of showing the fixed
opinions concerning that race, upon which the statesmen of that day spoke
and acted. It is necessary to do this, in order to determine whether the general
terms used in the Constitution of the United States, as to the rights of man and
the rights of the people, was intended to include them, or to give to them or
their posterity the benefit of any of its provisions."Dred Scott, 60 U.S. at 409.
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Justice Daniels (concurring) stated,
"Now, the following are truths wh ich a knowledge of the history of the
world, and particularly of that of our own country, compels us to know- that
the African negro race never have been acknowledged as belonging to the
family of nations; that as amongst them there never has been known or
recognized by the inhabitants of other countries anything partaking of the
character of nationality, or civil or political polity; that this race has been by
all the nations of Europe regarded as subjects of capture or purchase; as
subjects of commerce or traffic; and that the introduction of that race into
every section ofthis country was not as members of civil or political society,
but as slaves, as property in the strictest sense of the term. tI Dred Scott, 60 U.s, at
475.
The Supreme Court clearly defined that a "slave" was not a "citizen", or "person", when it made
its decision in Dred Scott v. Sandford. The Court decided,
"Hence it follows, necessarily, that a slave, the peculium or property of a
master, and possessing within himself no civil nor political rights or capacities,
cannot be a CITIZEN." Dred Scott, 60 U.S. at 476.
The later nullification of this decision by President Lincoln's Emancipation Proclamation and the
13
th
and 14th Amendments to the Constitution reversed the Court's decision to deny "slaves"
and Negroes their lawful rights of "citizens" and "persons", Justice Scalia,
"In my history-book, the Court was covered with dishonor and deprived of
legitimacy by Dred Scott v. Sandford. 19 How. 393, 15 L.Ed. 691 (1857)' an
erroneous (and widely opposed) opinion that it did not abandon .. ," Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.s. 833, 998, 112 S.Ct
2791,2883. (1992).
This decision set important precedents relevant to the current Writ. In addition to overturning
the Missouri Compromise and defining "slaves" to be property, this Writ of Error case, Dred
Scott v Sandford. set the precedent for the courts to define the legal terms: persons and human
beings. People are citizens; slaves are not citizens, according to Dred Scott.
The Supreme Court and the State of Washington have not defined that a "fetus", "embryo",
"unborn child" or any other term or language that describes an individual living human within a
mother is or is not a human being or person as was done in Dred Scott v. Sandford.
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Relevance of the Fourteenth Amendment
As the courts and the laws have not defined unborn individuals as human beings, they also have
not defined born individuals as human beings or persons. Therefore, the police must enforce
the homicide laws and treat all born and unborn as equal--all are human beings and persons,
including fetuses, embryos, unborn children, etc. All physically alive human beings must be
equally protected. If the unborn are not "human beings" or "persons", neither are the born,
according to current law and court decisions.
The courts and legislature have not defined two parts to human existence, born and unborn,
person and non-person. Therefore, a human being's life must be seen as one continuous life:
conception to death, not parts. Ifthere are no parts to a person's life, the police cannot legally
enforce the homicide laws based on who is "born" or "unborn", "person" or "non-person", as
the distinctions do not exist in law.
Accordingly, regardless of their location or age, no state may IIdeprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws" U.S. Constitution. Amendment XIV.
Section 1. as stated in the Fourteenth Amendment and as written on the front of the
Supreme Court building in our nation's Capitol: "Equal Protection Under Law",
In addition to Equal Protection, the Fourteenth Amendment, Section 1, states,
"No State shall make or enforce any laws which shall abridge the privileges or
immunities of citizens of the United States./I U.S. Constitution, Amendment XIV.
A "right to privacy" of a pregnant mother as enumerated in the Constitution according
to Roe v. Wade cannot be used to deny the IIright to life" of the human being within
her. Roe v. Wade acknowledges this reality in the following words,
liThe appellee and certain amici argue that the fetus is a 'person' within the
language and meaning ofthe Fourteenth Amendment. In support of this,
they outline at length and in detail the well-known facts of fetal
development. If this suggestion of personhood is established, the appellant's
case, of course, collapses, for the fetus' right to life would then be
guaranteed specifically by the Amendment." Roe. 410 U.S. at 156, 93 S.Ct. at
728.
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Page 14
and in the concluding paragraph on the discussion of the Fourteenth Amendment in
Roe v Wade:
"All this, together with our observation, supra, that throughout the major
portion of the 19th century prevailing legal abortion practices were far freer
than they are today, persuades us that the word "person," as used in the
Fourteenth Amendment, does not include the unborn." Roe. 410 U.S. at 158, 93 S.Ct.
at 729.
Contradictions within Roe v Wade
In the above concluding paragraph related to the Fourteenth Amendment, the Court is relying
on history to define the term "person" by what it "does not include
ll
. However the Court cannot
define IIpersons" and "human beings" by limiting the definition to what they are not. It goes
against common sense to limit a definition of something, an object, or more importantly a
person by stating what it is not. For example, to define a computer by what it is not, would be
difficult for anyone to comprehend. It is even more difficult to try to define a "person" solely by
stating what a person is not.
As the Court declined to define who a "person" ~ in this paragraph the Court is trying to define
who a "person", a "human being ", is not. However earlier in the same decision the Court
stated clearly that they believed that they were not in a position to do so, "We need not resolve
the difficult question of when life begins." Roe v. Wade. 410 U.s. at 159-160, 93 S.Ct. at 730.
One cannot decline to offer a definition of a term and then offer a definition based on what the
term does not include. This is an inherent contradiction within the same overall legal decision.
There are two other contradictions that the Court has made within the body of Roe v Wade:
1) since one must define such a term by stating what a person is, there is no definition at all,
but rather speculation. The Court however stated that it was not going to be involved in
speculation, " ... the judiciary, at this point in the development of man's knowledge, is not in a
position to speculate as to the answer."Roe v. Wade, 410 U.S. at 159-160,93 S.Ct. at 730.) The
statement above therefore has no rational meaning as "unborn" and "person" are not defined;
and 2) in Roe v. Wade, the Court sets "viability" as the "compelling point" at which the State
may have a "legitimate interest in potentiallife
ll
. Roe. 410 U.S. at 163.93 S.Ct. 732. "Viabilityll
as the "point" is then in direct contradiction to Justice Blackmun's statement quoted above,
which sets the "point" of "person" at birth and not before.
No law or legal ruling has ever defined pre-birth or pre-viable individuals and post-birth or post-
viable individuals in regards to their being "human beings" or "persons". No dividing line or
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Page 15
moment has ever been established. Therefore all rights must apply to all living human beings
and persons from the moment of their physical existence or conception, according to the
Fourteenth Amendment. "Immunity/ from death and the "privilege" of life for all is protected
herein. "Life" must be protected by the police as one continuous human life from conception,
because that is actually, physically and really when human beings and persons first become
alive.
The Ninth and Tenth Amendments
The Ninth and Tenth Amendments also apply to this police requirement of homicide law
enforcement:
liThe enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people." U.S. Constitution,
Amendment IX.
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the States
respectively, or to the people." U.S. Constitution, Amendment X.
The Spokane Police Department does not grant rights; the rights are already "retained
by the people", according to these two Amendments unless those rights have been
limited. No such limits have ever been placed on "human beings" or "persons" by the
Court, the United States Constitution or by the laws of the land. The police, therefore,
must enforce the homicide laws equally to all physically alive conceived human beings
and persons.
As "unborn children", "fetuses", "embryos", etc., have not been specifically excluded
from being "citizens", "human beings" or "persons", as was the case in Dred Scott v.
Sandford with "slaves" and "Negroes"; and as neither the born or unborn have been
defined or limited as human beings or persons, the rights of human beings from
conception, as people and citizens must be protected under each of these
Amendments. If unborn human persons have not had their inherent rights restricted or
limited by a "due process of law"; and, born human persons have not had their rights
limited "by a due process of law", then all must be protected equally by the Spokane
Police Department.
The closest the courts and the State have come to making a ruling on definitions of "human
being" and "person" is in their laws and decisions related to viability.
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Discussion of Viability: RCW 9.02.110 and RCW 9.02.170 (2010). Present legal status of this
term and its relationship to the Spokane Police Department enforcement of these laws
Under both Federal and Washington State Law, the legal justification for mothers to legally
obtain abortions depends upon RCW 9.02.170 (2010). Viability has been the legal foundation
upon which Roe v. Wade, other Supreme Court cases and the State of Washington justify the
abortion laws in our society. We argue that the concept of "viability" is not available for the
Spokane Police Department to use in their lack of enforcement of the homicide laws. If they do
so, they are in violation of the Fourteenth Amendment.
1. Federal vs. State Definition
The term "viability" is defined by the Supreme Court in Roe v Wade:
"As we have noted, the common law found greater significance in quickening.
Physicians and their scientific colleagues have regarded that event with less interest
and have tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes 'viable', that is, potentially able to live outside the
mother's womb, albeit with artificial aid. Viability is usually placed at about seven
months (28 weeks) but may occur earlier, even at 24 weeks." Roe, 410 U.S. at 160, 93
S.Ct. at 730.
The Supreme Court definition of viability allows for life with artificial aid outside the mother's
womb, while the Washington State definition excludes artificial aid. The police therefore
enforce a State viability law definition that violates a Supreme Court definition on this matter.
2. Viability no longer has time limits. Therefore it can no longer be equally applied to
unborn children or to their mothers.
"Viability" as defined in Roe, " ... the fetus becomes "viable", that is potentially able to live
outside the mother's womb, albeit with artificial aid. Viability may be placed at about seven
months (28 weeks) but may occur earlier, even at 24 weeks." Roe, 410 U.S. at 160,93 S.Ct. at
730.
The Court made decisions based upon these "facts" as they were understood by science in
1973.
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"Viability" as defined by Washington State has no time limit as part of its definition. However in
reality, the very legal meaning of "viability" changes over time. In 1973 a "fetus" was viable at
24-28 weeks gestation with artificial aid. Presently a Itfetus
ll
is viable at 20 weeks, with artificial
aid. For the past 30 years, surgical operations have taken place on such individuals in-utero,
presently as early as 18 weeks. University of California Fetal Treatment Center, 'Fetal Firsts'
available at http://fetus.ucsfmedicalcenter.org/our team/fetal firsts.asp(last visited July 2,
2011) and have become increasingly able to save or improve human lives.
However, according to the Supreme Court in Casey (1992), time is no longer a legal factor in the
definition of viability,
IINo change in Roe's factual underpinning has left its central holding
obsolete ..... these facts go only to the scheme of time limits on the realization of
competing interests, and the divergences from the factual premises of 1973 have
no bearing on the validity of Roe's central holding, that viability marks the
earliest point at which the State's interest in fetal life is constitutionally adequate
to justify a legislative ban on nontherapeutic abortions. The soundness or
unsoundness of that constitutional judgment in no sense turns on when viability
occurs. Whenever it may occur, the attainment of viability may continue to
serve as the critical fact. Pp. 2810-2811." Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S.at 835-836. 112 S.Ct. at 2798.
IIWe conclude the line should be drawn at viability, so that, before that time, the
woman has a right to choose to terminate her pregnancy. We adhere to this principle
for two reasons .... The second reason is that the concept of viability, as we noted in Roe.
is the time at which there is a realistic possibility of maintaining and nourishing a life
outside the womb, so that the independent existence of the second life can, in reason
and all fairness, be the object of state protection that now overrides the rights of the
woman. See Roe v. Wade. 410 U.S .. at 163, 93 S.Ct., at 731.). Consistent with other
constitutional norms, legislatures may draw lines which appear arbitrary without the
necessity of offering a justification. But courts may not. We must justify the lines we
draw. And there is no line other than viability which is more workable." Planned
Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S.at 870, 112 S.Ct. at 2816-
2817
The unborn child, therefore, under Roe, could be potentially protected by the State at the age
of 28 weeks, as this was the average period of gestational time to IIviability" in 1973. By 1992,
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at the time of Casey, this had changed to 24 weeks, so "second life" at this gestational age
could be protected by the State. Presently, the "viability" time line is as little as 20 weeks, so
currently these "second lives
ll
can be the object of state protection.
As, over time, "the independent existence of the "second life" can, in reason and all fairness, be
the object of state protection" Planned Parenthood of Southeastern Pennsylvania v. Casey/50S
U.S.at 870,112 S.Ct. at 2816-2817, this protection will be applied to in-utero individuals of
different ages as scientific knowledge and skills increase. These "second lives" were not
protected at 20 weeks in 1973 or in 1992, though today in 2011 they are legally protected. This
reveals a violation of equal protection guaranteed by the 14th amendment. It also defies
common sense, "JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE and JUSTICE
THOMAS, join, concurring in the judgment in part and dissenting in part,
Of course, JUSTICE O'CONNOR was correct in her former view. The
arbitrariness of the viability line is confirmed by the Court's inability to offer
any justification for it beyond the conclusory assertion that it is only at that
point that the unborn child's life "can in reason and all fairness" be thought to
override the interests ofthe mother. Ante, at 2817. Precisely why is it that, at
the magical second when machines currently in use (though not necessarily
available to the particular woman) are able to keep an unborn child alive
apart from its mother, the creature is suddenly able (under our Constitution)
to be protected by law, whereas, before that magical second, it was not? That
makes no more sense than according infants legal protection only after the
point when they can feed themselves.
1I
Planned Parenthood of Southeastern
Pennsylvania v. Casey. 50S U.S.at 990,112 S.Ct. at 2879.
The Supreme Court cannot logically claim a right to protect only individuals of a certain
gestational age from death in a given year (1973) and claim the same right to protect
individuals of an earlier gestational age in later years.
Equal protection under the law cannot change year to year. As of 1973 all "fetuses" younger
than 28 weeks, have been denied equal protection under the law. However, in 2011, many
"fetuses" much younger (20-28 weeks) are given that protection while their younger age-
mates(younger than 20 weeks} are denied it. The only change is in the status of scientific skill.
The development or "second life" ofthe "fetus" remains unchanged.
In order to accept the reasoning required by the Court's viability standard, the Fourteenth
Amendment cannot apply over time, but only in very self-contained and narrow strips of time.
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This is the rational put forth by the Casey Court. However, Justice O'Connor states early on in
this same decision,
"The inescapable fact is that adjudication of substantive due process claims
may call upon the Court in interpreting the Constitution to exercise that same
capacity which, by tradition, courts always have exercised: reasoned
judgment." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S.at 849, 112 S.Ct. at 2806.
And, the last words of Justice O'Connor in this case are,
"Our Constitution is a covenant running from the first generation of
Americans to us, and then to future generations. It is a coherent succession.
Each generation must learn anew that the Constitution's written terms
embody ideas and aspirations that must survive more ages than one."
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.s.at 901,
112 S.Ct. at 2833.
The police enforcement or support of the abortion laws is based on the viability standard. The
viability standard, the foundational pillar of our State's abortion law and the Supreme Court
decision, Roe v Wade, is a violation ofthe Fourteenth Amendment because it cannot be applied
equally to unborn children over any discernable period of time. It cannot be applied equally by
the State with pregnant mothers from year to year. And it will continue to be a violation of the
Fourteenth Amendment in the future due to medical science advances related to viability.
President lincoln addressed the difficulty of using arbitrary properties for purposes of
definition, when addressing the rights of Negroes or African-Americans held as slaves (referring
to the Declaration of Independence):
Ii I think the authors of that notable instrument intended to include all men, but
they did not intend to declare all men equal in all respects. They did not say all
were equal in color, size, intellect, moral developments or social capacity. They
defined with tolerable distinctness in what respects they did consider all men
created equal---equal in certain inalienable rights, among which are life, liberty
and the pursuit of happiness. This they said, and this they meant."Roy Basler, The
Collected Works of Abraham lincoln 405-406 (1953).
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3. Viability and In-utero Surgery
The legal standard of viability also fails to stand up to the scientific advances of in-utero
surgery. In-utero surgery has occurred for 30 years on the "unborn", at gestational ages as
young as 18 weeks: University of California Fetal Treatment Center, San Francisco, CA, Fetal
Treatment Center Web site: rd.; Vanderbilt University Medical Center, 'Pediatric and Fetal
Surgery' available at http://www.mc.vanderbilt.edu/root/vumc.php?site::::pedsurg
(last visited July 2,2011); Children's Hospital in Boston, 'Advanced Fetal Care Center', available
at http://www.childrenshospital.org/az/Site891/mainpageS891PO.html(last visited July 2,
2011} are a few. These procedures occur prior to many women feeling their children move
(quickening), the standard cited in the manslaughter law. Therefore, it is possible that an in-
utero child can receive a surgical procedure in order to save his or her life, the mother
assaulted prior to "quickening" and the killer of the child never arrested by the Spokane Police
Department or brought to justice.
4. Embryos are human beings. legal. Biological and Scientific Rationale
In order for the police to enforce the Washington State laws on abortion and thereby support
the Court's statement upon which the abortion law is based: that it was not up to the Court to
"resolve the difficult question of when life begins" Roe v. Wade, 410 U.s. at 159-160,93 S.Ct. at
730., the police must enforce one of the following that is true about living human embryos,
according to present law and court decisions:
1. Embryos are not human from the moment of conception. At some point between
conception and death, each of us becomes a human being and a person; or,
2. Embryos are human beings and they can be killed; or,
3. Embryos mayor may not be human beings, but even if they are, they can be killed.
In number one, the Court has not decided this point, therefore the police must look to
statements two and three as a rationale for enforCing or supporting the abortion laws.
Statements two and three are homicide as defined in the Washington State homicide
laws(homicide and manslaughter}. The Supreme Court's decision in Roe v Wade and
subsequent decisions upholding Roe's language, plus Washington State law, necessarily lead to
the conclusion that the police must enforce the homicide laws at Planned Parenthood because,
in truth, there is no difference between abortion and homicide as argued in the cases and the
law. They are the same thing.
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Embryos are defined as individual, unique human beings for a number of reasons:
"First, the embryo is distinct from any cell of the mother or father; its growth
is internally directed toward its own survival and maturation. Second, the
embryo is human: it has the genetic makeup characteristic of human beings.
Third, the most important, the embryo is a complete or whole organism,
though immature .... " and,
liThe embryo is plainly a living being. The child that is born several months
later is also a living being. The question ...... is this: Is that child the same living
being? Or is he or she a different one? The leading authorities in human
embryology and developmental biology are united in answering this
biological question: The child and the embryo are the same living being, the
same organism. "Child" and "embryo" merely refer to the same living being
at different stages of maturity." Robert George and George Tollefsen,
Embryo: A Defense of Human life. pgs. 50 and 171 (200B).
Embryos have a unique set of DNA which defines them as unique beings separate from mother
or father; they have individual blood types, separate and unique from the mother. Embryos
within their mothers are separate bodies, separate human beings, although attached body-to-
body.
Embryos outside their mothers are human beings. They can and have been created in artificial
environments. They therefore exist using "artificial means", as defined in Roe v Wade. Because
embryos can exist outside the mother with artificial aid, they must be deemed viable if we
accept the viability definition of Roe v Wade: "potentially able to live outside the mother's
womb, albeit with artificial aid." Roe, 410 U.S. at 160, 93 S.Ct. at 730. If an embryo, before it
develops into a tlfetus" is legally ((viable" and therefore protected by the Supreme Court, based
on its viability, it cannot legally be denied this same status a few weeks later.
Between conception and death there is no clear point at which the human being can be said
IInot to exist" and then suddenly begin to exist. Conception is the only clear point of beginning
from a biological and physical standpoint. From the point of conception until old age and death,
only the developmental stages change. Every living person is at some developmental stage
between conception and death. Each person was an embryo; embryos are human beings and
persons at the earliest developmental stages in hopefully, long lives until death. We are equal
to them; they to us, just individuals at different developmental stages. I am the same human
being I was at conception, at birth or at five years old. The alternative to this reality is some
other reality, which the police do not have the legal authority to define or enforce.
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Heart beat and Brain Waves
Often medical science uses the permanent cessation of brain waves or heartbeat as a
determination for death. Temporary cessation of brain waves or heartbeat, however, does not
indicate a lack of a human being existing. Such temporary cessation can occur during serious
injury, heart attack and many surgical procedures. The lack of a discernable fetal heart beat
during the first 3 weeks following conception and the lack of discernable brain waves during the
first 6 weeks do not indicate a lack ofthese individuals being "human beings" or "persons".
These conditions are not permanent; they are "developmental" and similar to someone re-
developing the use of his brain or heart after surgery, illness or accident.
The Spokane Police Department does not have the legal right to deSignate an individual as not a
"human being" or "person" due to a lack of discernable brain wave activity or a lack of
discernable heart beat. As an example, a person on a heart by-pass machine or attached to an
artificial heart for days or weeks while awaiting a donor heart, has no heart. These individuals
are still legal human beings and persons. The police do not have the authority to remove equal
protection under the law from any living individuals, whether they be a 60 year old woman who
is having open heart surgery, a newborn infant or individuals of the earliest gestational age.
5. Legal definitions of "viability" and "quickening" no longer exist as a result of the "Partial-
Birth Abortion Ban Act", 2003 and Supreme Court Case, Gonzales v. Carhart. 2007
upholding this Act.
In 2007, the Supreme Court decision} Gonzales v. Carhart, eliminated viability and quickening
as a means of defining a "human being" or "person" or even a "potential human", an
undefined term used in the Roe and Casey decisions. In Gonzales v. Carhart. the Supreme Court
upheld the Partial-Birth Abortion Act passed by Congress in 2003. The Partial-Birth Abortion
Ban Act states,
"The Congress finds and declares the following: (1) A moral, medical, and ethical
consensus exists that the practice of performing a partial-birth abortion -- an abortion in
which a physician delivers an unborn child's body until only the head remains inside the
womb, punctures the back of the child's skull with a sharp instrument, and sucks the
child's brains out before completing delivery ofthe dead infant -- is a gruesome and
inhumane procedure that is never medically necessary and should be prohibited."
Partial-Birth Abortion Act, 18 USCS 1531, Chapter 74, pg.885(2003).
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According to the majority opinion written by Justice Kennedy:
liThe Act does apply both previability and postviability because, by common
understanding and scientific terminology, a fetus is a living organism while within the
womb, whether or not it is viable outside the womb. See, e.g., Planned Parenthood, 320
F.Supp.2d. at 971-972. We do not understand this point to be contested by the parties,"
Gonzales v. Carhart. 550 U. S. 124,147,127 S.Ct., 1610, 1627.(2007}.
In a dissenting opinion, Justice Ginsburg, with Stevens, Souter and Breyer joining, states:
"(T)here is no line(more workable) than viability ... Today the Court blurs that line
maintaining that "the Act (legitimately) appl(ies} both pre-viability and post-viability
because .... a fetus is a living organism while within the womb, whether or not it is viable
outside the womb." Ante, at 17. Instead of drawing the line at viability, the Court refers
to Congress' purpose to differentiate "abortion and infanticide" based not on whether a
fetus can survive outside the womb, but on where a fetus is anatomically located when
a particular medical procedure is performed ..... A fetus is described as an "unborn child"
and as a "baby"." Gonzales v. Carhart, 550 U. S. at 186-187, 127 S.Ct. at 1649-1650.
The language of Congress in this law is significant, as the Act defines what a "child" is.
In Part (H),
"This interest becomes compelling as the child emerges from the maternal body.
A child that is completely born is a full, legal person entitled to constitutional
protections afforded a 'person' under the United States Constitution. Partial-
birth abortions involve the killing of a child that is in the process, in fact mere
inches away from, becoming a 'person'." Partial-Birth Abortion Act, pg. 888.
The Partial-Birth Abortion Ban Act of 2003 specifies no gestational time requirement
associated with partial-birth abortions. The procedure is banned based upon its
method. Nowhere in the Partial-Birth Abortion Ban Act is the age or development of
the child limited or defined. The human being suffering this procedure, referred to as
"child", "baby" and other terms in parts (H), (K) and (M)Partial-Birth Abortion Act, pg.
888. is in possession of the anatomical features described in the law(head and trunk) by
the 4th gestational week.
Therefore, a "child" of any gestational age may be considered "a full, legal person", if a partial-
birth abortion is planned, according to the Partial-Birth Abortion Act and the Supreme Court's
upholding of this law in Gonzales v. Carhart. The intentions of the mother and the literal
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location of the child, rather than the gestational time of fetal development are used to define
the child as deserving protection.
Partial-birth abortions were banned in the Partial-Birth Abortion Ban Act because of the
gruesome method required, not the age ofthe child. Other abortion procedures are "equally
gruesome.
'1
The Court carefully stated that the Partial-Birth Abortion Ban was not meant to
limit the non-intact D&E procedure. In the Supreme Court Decision, Justice Stevens points out
in his dissenting opinion:
"Non-intact D&E could equally be characterized as "brutal", ante, at 26,
involving as it does "tear(ing) {a fetus} apart" and "rip(ping) off" its limbs,
(ante, at 1620-1621
1
1621-1622. The notion that either of these two
equally gruesome procedures ... is more akin to infanticide than the other,
or that the State furthers any legitimate interest by banning one but not
the other, is simply irrational." Stenberg, 530 U.S., at 946-947, 120S.Ct.
2597 {Stevens, J., concurring)." Gonzales v. Carhart, 550 U. S. at 182, 127
S.Ct. at 1647.
The wording by Congress in Parts (H), (K) and (M) of the Act; the fact that Gonzales was upheld;
and Justice Stevens' dissenting comments in Gonzales. lead to the conclusion that aborting a
"child" while it is entirely inside the mother cannot be materially different from killing
(homicide) the same child when it is in a location just a few inches away, while partially born.
Today, as a result of The Partial Birth Abortion Act, an unborn child on one side of the birth
canal can be considered a victim of homicide, while a child on the other side of the birth canal is
not. The location of a person caused equal injustice to human beings prior to the Dred Scott
decision. Prior to 1857 a slave killed on one side of the Mississippi River in Illinois was
considered the victim of a homicide because the death of a human being had occurred. A slave
killed on the opposite side of the Mississippi River in Missouri was merely a destroyed piece of
property. After Dred Scott neither were considered homicide, as slaves were clearly defined as
property. Then as now, location cannot be used as a criteria to define a human being.
As a result of Gonzales, gestational age--trimesters, weeks of viability--do not define a human
being. Therefore, the terms "viability" and "quickening" no longer have any rational legal
meaning.
The Gonzales decision is in direct contradiction to the Supreme Court's ruling in Roe v Wade.
Roe. 410 U.S. at 163, 93 S.Ct. 732 and Casey.
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1/ The viability line reflects the biological facts and truths of fetal development; it
marks that threshold moment prior to which a fetus cannot survive separate from
the woman ..... As a practical matter, because viability follows "quickening" - the
point at which a woman feels movement in her womb - and because viability
occurs no earlier than 23 weeks gestational age, it establishes an easily applicable
standard for regulating abortion, while providing a pregnant woman ample time
to exercise her fundamental right with her responsible physician to terminate her
pregnancy.492 U.S., at 553-554, 109 S.Ct., at 3075-3076." Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. at 932-933, 112 S.Ct.at 2849.
Given the five arguments discussed above regarding viability it can only be concluded that the
Spokane Police are not in a position to decide whether an individual within its mother's womb
is "viable", "quick" or not, as "viability" as a term has no clear, discernable legal meaning as
applied to the homicide or abortion laws; and, "quickening" has no clear, discernable legal
meaning as it is presently defined in the manslaughter law. The police are not in a legal
position to either interpret who a "human being" or "person
ll
is in relation to the homicide or
abortion laws or to enforce these laws based upon their assumed understanding of these legal
terms.
3. When the homicide and abortion laws are in conflict
The Spokane Police Department does not have the authority to choose which laws it may
enforce and which laws it may not enforce, even if certain laws are in conflict with one another.
A. Public Safety is the primary duty of the Spokane Police Department
The Spokane Police Department must always act on the side of the innocent and in protection
of human life, according to their policies:
"A. Law Enforcement Code of Ethics
Canons of Ethics
Canon One
ETHICAL STANDARDS
Standard 1.1:
Members of the Spokane Police Department shall recognize that the primary
responsibility of their profession and of the individual member is the protection of the
people within the jurisdiction of the United States through upholding of their laws, the
most important of which are the Constitution of the United States and the State
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Constitution and laws derived therefrom." and,
"Standard 1.6:
Members of the Spokane Police Department shall respect and uphold
the dignity, human rights, and constitutional rights of all persons." Spokane Police
Department. 'Policy Manual', pgs. 2- 4, adopted May 4,2011, available at
http://www.spokanepolice.org/documents!PolicyManual website. pdf
(last visited July 3, 2011).
The Spokane Police Department are not abiding by the Constitution of the United States. They
enforce the laws as if "human beings" and "persons" are not protected from conception. The
authority for making this decision is not given to them by the Constitution of the United States
U. S. Constitution or the State of Washington Constitution State of Washington Constitution as
these terms are not defined therein. They therefore are not "upholding the laws" within the
Constitutions or the "laws derived therefrom" and are not "uphold(ing) .... the human rights,
and constitutional rights of all persons." U.S Constitution. Amendments IX and X.
B.The Manslaughter Act:
When the homicide and abortion laws are in conflict the Police must still enforce the homicide
laws.
Manslaughter in the first degree. RCW 9A.32.060 (2010)
11(1) A person is guilty of manslaughter in the first degree when:
(a) He recklessly causes the death of another person; or
(b) He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the
mother of such child."
General Requirements of Culpability. RCW 9A.08.010 (2010)
"(l)(b}(c): RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of
and disregards a substantial risk that a wrongful act may occur and his or her disregard of
such substantial risk is a gross deviation from conduct that a reasonable person would
exercise in the same situation."
Discussion of Manslaughter:
The laws above are clear and are applied in a variety of situations. For example, a hunter,
entering a forest for the purpose of killing a deer, who mistakenly kills a human being can be
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charged and found guilty of manslaughter in Washington and other states. State v. McMahon.
Connecticut Supreme Court, 257 Conn. 544, 788 A. 2
nd
847, No. 16322,August 14,2001.
The Spokane Police Department faces a similar position regarding abortion and the
enforcement of the homicide laws. Without legal definitions of "human being" or "person",
"viability" and "quickening", they must enforce the laws that ensure that individuals and
organizations in society are held to the same standards as the hunter. One must refrain from
certain actions, i.e., shooting a gun, driving too fast, etc., if there is the potential that a human
being might be killed.
Justice O'Connor states,
"Abortion is a unique act. It is an act fraught with consequences for others: for
the woman who must live with the implications of her decision; for the persons
who perform and assist in the procedure; for the spouse, family, and society
which must confront the knowledge that these procedures exist, procedures
some deem nothing short of an act of violence against innocent human life;
and, depending on one's beliefs, for the life or potential life that is aborted."
Planned Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S.at 852,
112 S.Ct. at 2807.
The Court's statement is supported by the fact that 51% of IIsociety" believe lIabortion is
morally wrong, while 39% believe it is morally acceptable." Gallup Poll, May 23, 2011,
available at http://www.gallup.com/poll/147734/Americans-Split-Along-Pro-Choice-
Pro-Life-Lines.aspx} (last visited July 2, 20ll).
The Casey Court's statement supports the contention that a human life may be killed in
abortion, just as it may be killed during hunting. The requirement to protect human life exists in
spite of a clear conflict between these two laws. The police must not support others--mothers,
husbands, boyfriends, or anyone or any agency who support an individual in reckless behavior
in regards to the life and death of human beings, especially if there is a "substantial risk that a
wrongful act may occur".
According to the Manslaughter Law and Supreme Court there may be human beings at risk
within the mothers, just as there are human lives at risk in other situations, such as hunting or
driving too fast.
The police are enforcing these laws as if there are two definitions of "human being" and
"person". The first definition is those born, the second is those who have not been born. They
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treat each set of individuals differently and thereby apply the laws unequally. They are violating
there own policies by not enforcing the homicide laws and are in violation of the Fourteenth
Amendment based on assumed legal definitions for these terms, which do not exist.
B. The Spokane Police Department by not enforcing the Homicide Laws against Planned
Parenthood is in violation of The Declaration of Independence and the Constitution of the
United States.
Declaration of Independence
A} Created vs. born
The Declaration of Independence is the foundational legal pillar of the Constitution and of all of
our laws. The Declaration states in the second paragraph, "We hold these truths to be self-
evident, that all Men are created equal, that they are endowed by their Creator with certain
unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness."
Declaration of Independence, paragraph 2, (1776).
A Dictionary ofthe English Language, Samuel Johnson, 1755, the standard English
dictionary was used at thattirne. Britannica Encyclopedia, see 'Dictionary ofthe English
Language' 79 (2002).
The Samuel Johnson Dictionary defines the word "create": I( To form out of nothing; to
cause to exist.. .. ". Samuel Johnson, A Dictionary of the English Language, see 'Create'
(1755).
When Thomas Jefferson, the author of the Declaration of Independence, used the word
"created" in the Declaration, he chose not to use the word "born". ({Born" is defined as, "The
participle passive of bear. To be BORN.v.n.pass.{derived from the word To bear, in the sense of
bringing forth: as my mother bore me twenty years ago)". Samuel Johnson, A Dictionary, see
'Bear' and 'Born',(1755), Id.
Thomas Jefferson made two clear statements regarding the "unborn" as related to both
"slaves" and to "men". The first was made in a comment in 1786 on the failure ofthe States in
1784, to pass, by only one vote, an article prohibiting slavery in the new Territories after the
year 1800:
"The voice of a single individual of the State which was divided, or of one of
those which were of the negative, would have prevented this abominable crime
26

Page 29
from spreading itself over the new country. Thus we see the fate of millions
unborn hanging on the tongue of one man, and heaven was silent at that awful
moment! But it is hoped it will not always be silent, and that the friends to the
rights of human nature will in the end prevail,"Foley, The Jeffersonian
Cyclopedia. in part 7930, Slavery, abolition oj, 811.
and the second in a letter to Dupont de Nemours in 1803:
"For myself and my country, I thank you for the aids you have given it; and I
congratulate you on having lived to give those aids in a transaction replete with
blessings to unborn millions of men, and which will mark the face of a portion on
the globe so extensive as that which now composes the United States of
America."Foley, The Jeffersonian Cyclopedia. in part 4860, Louisiana, Treaty
ratified, 519.
In comparison, he used the word IIborn" and not "create" in a letter to Thomas Law in
1814,
" ... it is false reasoning which converts exceptions into the general
rule. Some men are born without the organs of sight, or of hearing, or
without hands. Yet it would be wrong to say that man is born without
these faculties ..... /I."John Foley, The Jeffersonian Cyclopedia: A
Comprehensive Collection of the Views of Thomas Jefferson, in part 5519,
Moral Sense, a want of, 592 (1900).
Human beings and persons, i.e., all of us, exist prior to birth. Being born does not create "men".
"Men" are created and then are born.
The Spokane Police Department violates the Declaration by their lack of enforcement of the
homicide laws against Planned Parenthood, who engage in taking human beings' lives after
they have been created. As a result oftheir own inaction in enforcing the homicide laws against
Planned Parenthood, the Spokane Police Department does not recognize that all men are
created equal; nor of their unalienable right to life.
B. The Right of Kings v Equality: The Idea the United States was Founded Upon
"Negroes" had, for over 250 years, the same "not human" status as the unborn have carried for
the last 38 years. Abraham Lincoln said,
"My faith in the proposition that each man should do precisely as he pleases with
27

Page 30
all that is exclusively his own, lies at the foundation of the sense of justice there
is in me ... IlBut if a Negro is a man, is it not to that extent, a total destruction
of self-government, to say that he too shall not govern himself? .. .If a Negro is a
man, why then my ancient faith teaches me that "all men are created equal";
and that there can be no moral right in connection with one man's making a
slave of another.
J1
Qctober, 16, 1854: Paul Angle and Earl Miers, The Living Lincoln
169-170 (1992).
The Declaration preceeded the Constitution and the words of the Declaration have a powerful
influence upon the meaning of the Constitution. They speak to the decision of the thirteen
colonies to form a new country based on the "Consent of the Governed and the "Right of the
People". Declaration, paragraph 2. This was in opposition to the power of the King, whom the
Declaration refers to as "a Tyrant". Declaration, paragraph 30. Prior to the founding of our
country, the king defined who was human, who lived and who died.
"He has made Judges dependent on his Will alone", Declaration. paragraph 11. and "destroyed
the Lives of our People".Deciaration. paragraph 26. In the same way, current law makes the
unborn individual dependent on the will of the pregnant mother alone, giving her essentially
the same power as the king had over the people prior to the Declaration.
The founding of our country rid all Americans from the tyranny of a King who could take upon
himself all authority. Our country was founded on the belief, unknown and an experiment at
the time, that all power and authority rested with the people, all equal to one another, not with
a single individual, set above all others.
Only in the laws of abortion, of all the laws of our land, the Court has taken the powers of the
king and provided them to pregnant mothers. Only a pregnant mother can decide who is
human and who is not. Women who are not pregnant, children who are not pregnant and men
do not have this power. One pregnant mother requests life-saving surgery for a sixteen week
old unborn child and receives it, while another requests death for an individual ofthe same age
and receives it. Only a pregnant mother, including a fourteen-year-old mother, can decide to
end the life of her child within her. She, like kings before her, can decide the humanity of her
child and take his life.
The courts and legislatures, with the police's support and acquiescence have given the absolute
power of the king over life and death to pregnant mothers alone, thereby reversing the "right
to life, liberty and the pursuit of happiness" which is the foundational pillar of our country.
28

Page 31
Abraham Lincoln saw the same situation in his time.
"They are the two principles that have stood face to face from the beginning of
time; and will ever continue to struggle. The one is the common right of
humanity and the other the divine right of kings. It is the same principle in
whatever shape it develops itself." Seventh Lincoln-Douglas Debate, October 15,
1858, Alton, Illinois: Angle and Miers, The Living Lincoln 281; and,
"I should like to know if taking this old Declaration of Independence, which
declares that all men are equal upon principle and making exceptions to it where
will it stop. If one man says it does not mean a Negro, why not another say it
does not mean some other man? If that Declaration is not the truth, let us get
the statute book, in which we find it and tear it out! Who is so bold to do it!."
Lincoln, July 10, 1858: Angle and Miers, The Living Lincoln 229.
The Spokane Police Department supports laws and practices which are in direct opposition to
the principles that our government was founded upon. They support the same powerful idea
that our country was founded against, that an individual, in this case--a pregnant mother--can
decide issues of life and death over others and thereby decide that "all men" are not "created
equal": not her, compared to all other members of society and not her unborn child.
The Constitution of the United States of America
The Constitution first and foremost states,
"We the people of the United States, in order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of liberty to ourselves and
our Posterity, do ordain and establish this Constitution for the United States of
America." U.S. Constitution.
A) "We the People" and "Posterity"
Over 50 million "people", "human beings", "persons" have died in our country since Roe vs.
Wade, half of them female. These millions are the IIPosterity" guaranteed the "Blessings of
Liberty" in this revered document. There is no evidence that any of the thirty-nine signers of
the Constitution knew, assumed or planned for, the loss of more than 50 million of the
"People" from the "Posterity" as a result of abortion, when they wrote these most profound
words. "Posterity" came with no assumption of human losses from abortion as it must today.
29

Page 32
The opposite beliefs regarding the meaning of "Posterity" have been publicly stated or written
by the signers, Founding Fathers and leaders of our country over the past two centuries. The
following statement, in reference to the King of England, was used in the Declaration as one of
the arguments for founding a new country and for declaring Independence from England in
1776:
"He has endeavored to prevent the Population of these States;" Declaration, paragraph 9.
Other statements include,
"We contemplate this rapid growth ... to the multiplications of men susceptible of
happiness, educated in the love of order, habituated to self government, and
value its blessing above all price."President Thomas Jefferson, First Annual
Message, Dec. 8, 1801: Merrill Peterson, Thomas Jefferson. Writings 503
(1984).
lilt has also been a great solace to me, to believe that you are engaged in
vindicating to posterity the course we have pursued for preserving to them, in all
their purity, the blessings of self-government, which we had assisted too in
acquiring for them./lJefferson letter to James Madison, February 17,1826:
Peterson, Thomas Jefferson. Writings. 1515.
"And not only so, but the increase of our population may be expected to
continue for a long time after that period, as rapidly as before; because our
territory will not have become full. I do not state this inconsiderately. At the
same ratio of increase which we have maintained, on an average, from our first
national census, in 1790, until that of 1860, we should, in 1900, have a
population of 103,208,415 .... " Abraham lincoln, Dec. 1, 1862, Annual Message
to Congress, speaking when the population was thirty-one million: Angle and Miers,
The Living Lincoln 520.
And Justice O'Connor in 1992,
"Our Constitution is a covenant running from the first generation of
Americans to us, and then to future generations. It is a coherent succession.
Each generation must learn anew that the Constitution's written terms
embody ideas and aspirations that must survive more ages than one."
30

Page 33
Planned Parenthood of Southeastern Pennsvlvania v. Casey, 505 U.S.at 901,
112 S.Ct. at 2833.
The Constitution's proclamation of "We the People" is no longer true. Since the year 1973, 50
million of the people have been killed. 29% of the "Posterity" of our country have not been
born since 1973.
The lack of homicide law enforcement by the Spokane Police Department against Planned
Parenthood ensures that the first three words of the Constitution, "We the People", no longer
have the meaning intended by the Constitution and that many more people, i.e., our
"Posterity" will die in the future. Both ofthese are violations ofthe Constitution ofthe United
States.
B) Separation of Powers
The Constitution divides "power" into three separate and independent areas: legislative,
Judicial and Executive, which form the legal basis of our country's continued existence:
IINo man is allowed to be a judge in his own cause because his interest would
certainly bias his judgment, and, not improbably, corrupt his integrity." {James
Madison, The Federalist No. 10 (James Madison), and
"No political truth is ...... of greater intrinsic value" than that liThe accumulation
of all powers, legislative, executive, and judiciary, in the same hands, whether
of one, few, or many, and whether hereditary, self-appointed, or elective, may
justly be pronounced the very definition of tyranny." The Federalist No. 47
(James Madison).
Pregnant mothers as individuals have accumulated "all powers":
Legislative power: a pregnant mother writes the law by legally defining "human being" and
"person" for her unborn child only;
Judicial power: a pregnant mother judges whether the law that she has written regarding the
existence of a human being within her is legal;
Executive power: a pregnant mother executes the law for herself and decides whether the
child, the human being living within her, lives or dies.
31

Page 34
There is no Constitutional language that enumerates "rights" for any individual to:
a) decide whether someone is a human being or not;
b) decide which human beings live and which ones die; or
c) take the risk that they are killing a human being.
Our country was founded on the exact opposite idea: we are all equal. No individual has the
power of life and death over others who are equally alive. Therefore, the police have no legal
authority to support such "rights".
"America needs no words from me to see how your decision in Roe v. Wade has
deformed a great nation ..... It has portrayed the greatest of gifts-a child-as a
competitor, an intrusion, and an inconvenience. It has nominally accorded mothers
unfettered domination over the independent lives of their physically dependent sons
and daughters. And, in granting this unconscionable power, it has exposed many
women to unjust and selfish demands from their husbands or other sexual partners."
(Mother Teresa, amicus curiae brief, U.S. Supreme Court: Loce v. New
Jersey, 510 U.S. 1165, 114 S.Ct.1192(1994) and Krail et al. v. New Jersey, 510 U.S. 1165,
114S.Ct. 1192(1994}.
The police failure to enforce the homicide laws at Planned Parenthood and acquiescence with
certain individuals only-pregnant mothers-in exercising all aspects of governmental power
for their individual interests over other human beings, is a violation by the police of the
separation of powers embodied in the Constitution of the United States.
Final Thoughts and Prayer for Relief
Lincoln said in discussing the perpetuation of our political institutions,
"At what point then is the approach of danger to be expected? I answer, if it ever
reach us, it must spring up against us. It cannot come from abroad. If
destruction be our lot, we must ourselves be its author and finisher. As a nation
of freemen, we must live through all time, or die by suicide."January 27, 1838:
Angle and Miers, The Living Lincoln. 21.
By not defining what human life is, the Supreme Court allows death to define our country--past,
present and future. "We the People" and "our Posterity" cannot exist via the death of the
people.
32

Page 35
Without a definition of flhuman beings" or "persons" and based on the arguments presented,
we are justified in stating that individuals from conception, prior to and after birth, are in fact
human beings and persons, entitled to "Life, Liberty and the Pursuit of Happiness." The
Spokane Police Department does not have the authority to interpret the meaning of "human
beings" or "persons" in one manner over another, when the legal definition does not exist or
has not been defined by the Courts or in Washington State Law. The Spokane Police are
presently in violation of the Declaration of Independence and the Constitution of the United
States. Their primary duty is to protect human life.
Commenting on Senator Stephen Douglas's famous statement that he "didn't care" whether
Negroes were human beings or not, a question that Lincoln repeatedly pressed him to answer,
lincoln said,
"Let us be diverted by none of those sophistical contrivances such as groping for some middle
ground between the right and the wrong, vain as the search for a man who should be neither a
living man nor a dead man---such as a policy of 'don't care' on a question about which all true
men do care."Speech at the Cooper Institute, Feb. 27, 1860: Angle and Miers, The Living
Lincoln, 319.
In a famous speech given before President Clinton, Mother Teresa had the courage to state,
"Yours is the one great nation in all of history that was founded on the precept of equal rights
and respect for all humankind, for the poorest and weakest of us as well as the richest and
strongest. ...... Your impetus has almost always been toward a fuller, more all embracing
conception and assurance of the rights that your founding fathers recognized as inherent and
God-given . ...... Yet there has been one infinitely tragic and destructive departure from those
American ideals in recent memory. It was this Court's own decision in Roe v. Wade (1973) to
exclude the unborn child from the human family ...... Your opinion stated that you did not need to
"resolve the difficult question of when life begins." That question is inescapable. If the right to
life is an inherent and inalienable right it must surely exist wherever life exists. No one can deny
that the unborn child is a distinct being, that it is human, and that it is alive. It is unjust,
therefore, to deprive the unborn child of its fundamental right to life on the basis of its age, size,
or condition of dependency. It was a sad infidelity to America's highest ideals when this Court
said that it did not matter, or could not be determined, when the inalienable right to life began
for a child in its mother's womb."Mother Teresa. amicus curiae brief, Id; guest speaker, National
Prayer Breakfast, February 5, 1994.
Dedication: I dedicate this effort to my wife, Virginia, who stated the Truth about abortion. In our first
talk, she calmly said, "You don't know much about abortion do you?" She suggested, "Read Roe v Wade
and then we'll have a discussionJl---lC
33

Page 36
on this

/,
.' MICHAEL WALTERS
2-1 . day of July, 2011. e. L

VIRGI I RICHARD HANSON
SUBSCRIBED AND SWORN to before me this--=-"",,= __
... ry blic i and for the State
of Washington.
My Commission expires: a);UJLf
34

Page 37
SUPERIOR COURT OF WASHINGTON
COU NTY OF SPOKAN E
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
and
Petitioners,
SPOKANE POLICE DEPARTMENT,
..
CITY OF SPOKANE
Respondents.
NO.
FILED
'JUL .2 [) 2D11
THOMAS A. fALl..QUIS,
SPOKI\NI-' COUNTy CLEPI(
11203051-2
AFFIDAVIT OF LAWRENCE CRONIN IN
SUPPORT OF PETITION FOR WRIT OF
MANDAMUS
Official Request of the Spokane Police Department
My name is Larry Cronin. I am here to inform you that homicides are occurring on
an ongoing basis at Planned Parenthood at 123 E. Indiana Ave. in Spokane, WA. I
request that you investigate these homicides and take lawful action against
Planned Parenthood to stop the unlawful homicides occurring at this
organization. I am officially filing a homicide report with you at this time.
Clarifying question: Do abortions take place at Planned Parenthood?
Officer: '1
Response .........
1.

Page 38
I, LAWRENCE CRONIN, being duly sworn upon oath, depose and say: I am over
the age of 18 years, speak to matters herein that are within my personal
knowledge and am, in all respects, competent to testify.
I made the request described on page 1. of this document and took the described
actions with Police Officer(s):
V:> )'h.e4!Ce ..-.-
on June 17th, 2011 at the Spokane Police Department, 1100 W. Mallon, Spokane,
WA.
RESPECTFULLY SUBMITTED this 2- 1 July, 2011.

Petitioner
SUBSCRIBED AND SWORN to before me this 1d day of July, 2011.
raM.;:,;-;:';;", .. 1T ",
e State of WasJUnctoa I
i Everyll Jane S_lIie
i MY COUIIIIMlIIIXPRES
= .1..,4 -
Enlllllllllllllntllllmnn-
CS
""
AFFIDAVIT OF LAWRENCE CRONIN IN SUPPORT
OF PETITION FOR WRIT OF MANDAMUS
Exhibit A
-
2.

Page 39
SUPERIOR COURT OF WASHINGTON
COUNTY OF SPOKANE
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
and
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
FILED
'JUL 25 2011
THOMAS R. FALLQUIS.
COUNTY CLERK
NO.
11203051-2
AFFIDAVIT OF VIRGINIA CRONIN IN
SUPPORT OF PETITION FOR WRIT OF
MANDAMUS
Official Request of the Spokane Police Department
My name is Ginny Cronin. I am here to inform you that homicides are occurring
on an ongoing basis at Planned Parenthood at 123 E. Indiana Ave. in Spokane,
WA. I request that you investigate these homicides and take lawful action against
Planned Parenthood to stop the unlawful homicides occurring at this
organization. I am officially filing a homicide report with you at this time.
Officer: k-ev \ 1\ Sio eo ce r
Response: \1 Yes, I lA.od{["stQod 1: Q.e.1\ 11- do tI
Clarifying question: Do abortions take place at Planned Parenthood?
Officer: \(ev.f\ S\'let\Vec
Response: '\ As .f-a.' a,s :t:' kV\Dl,.-U; yes / I'
1.

Page 40
I, VIRGINIA CRONIN, being duly sworn upon oath, depose and say: I am over the
age of 18 years, speak to matters herein that are within my personal knowledge
and am, in all respects, competent to testify.
I made the request described on page 1. of this document and took the described
actions with Police Officer(s):
k'ev\/\ S\-tearer
on June 17
th
, 2011 at the Spokane Police Department, 1100 W. Mallon, Spokane,
WA.
RESPECTFULLY SUBMITIED this Zd July, 2011.

Petitioner
SUBSCRIBED AND SWORN to before me of July, 2011.
' ...... ... I .... , ............ 1IIIIIIIIil
; Notary PuIJlic I
:: State of WuhiapoD. I
Everyll Jane Skelli. I
MY CO.BI181ICf1I!XPNS i
= .12-altt4 =
5.,lllIllllllIlIInmmnntniilMiIilWllllllli
AFFIDAVIT OF VIRGINIA CRONIN IN SUPPORT
OF PETITION FOR WRIT OF MANDAMUS
Exhibit B
_-nouif y ublic in and for th State
of Washington.
My Commission expires: lrllz)jtf
2.

Page 41
SUPERIOR COURT OF WASHINGTON
COUNTY OF SPOKANE
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGlAS TURNER
and
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO.
FilED
fJUL 25 2011
THOMAS R
SPOItANL: COIJNi1' Q!,fiAk

AFFIDAVIT OF RICHARD HANSON IN
SUPPORT OF PETITION FOR WRIT OF
MANDAMUS
Official Request of the Spokane Police Department
My name is Rich Hanson. I am here to inform you that homicides are occurring on
an ongoing basis at Planned Parenthood at 123 E. Indiana Ave. in Spokane, WA. I
request that you investigate these homicides and take lawful action against
Planned Parenthood to stop the unlawful homicides occurring at this
organization. I am officially filing a homicide report with you at this time.
Officer: DM Gwr
Response: \\ STOr glSA,)J/lJG I Cd-tV NoT 116-J You, I,
Clarifying question: Do abortions take place at Planned Parenthood?
Officer: J)J.A.
Response: 1l I At.<JdI'- THAT tt60fLno,J$ bAt TIlt<IVJ6 r'-4c.f.!.
itT TlfAT j(
1.

Page 42
I, RICHARD HANSON, being duly sworn upon oath, depose and say: I am over the
age of 18 years, speak to matters herein that are within my personal knowledge
and am, in all respects, competent to testify.
I made the request described on page 1. of this document and took the described
actions with Police Officer(s): D AA GIl-AAlI
on June 17
th
, 2011 at the Spokane Police Department, 1100 W. Mal/on, Spokane,
WA.
RESPECTFULLY SUBMITTED this U July, 2011.
SUBSCRIBED AND SWORN to before me this U
' ........... .......-II_IIIIUI ...... ~
I Notary Publk I
; State of Wuhhlpoo i
~ Everyll Jane SkeIn. i
~ MY COI SION IXPIRES I
:: 1-1a..t4 ::
5.1111"'''IIIJIUlIIIIIII ..... nl ... I I . I I I I I I ~
AFFIDAVIT OF RICHARD HANSON IN SUPPORT
OF PETITION FOR WRIT OF MANDAMUS
Exhibit C
2.
1 2 L . . J ~
RICHARD HANSON
Petitioner
day of July, 2011.

Page 43
SUPERIOR COURT OF WASHINGTON
COUNTY OF SPOKANE
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
and
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO.
FILED
'JUL 25 l011

Sf'{}!l"liN&

11203051-7,
AFFIDAVIT OF MICHAEL WALTERS IN
SUPPORT OF PETITION FOR WRIT OF
MANDAMUS
Official Request of the Spokane Police Department
My name is Mike Walters. I am here to inform you that homicides are occurring
on an ongoing basis at Planned Parenthood at 123 E. Indiana Ave. in Spokane,
WA. I request that you investigate these homicides and take lawful action against
Planned Parenthood to stop the unlawful homicides occurring at this
organization. I am officially filing a homicide report with you at this time.
Clarifying question: Do abortions take place at Planned Parenthood?
1.

Page 44
I, MICHAEL WALTERS, being duly sworn upon oath, depose and say: I am over
the age of 18 years, speak to matters herein that are within my personal
knowledge and am, in all respects, competent to testify.
I made the request described on page 1. of this document and took the described
actions with Police Officer(s}:
,(,. J).
on July 5, 2011 at the Spokane Police Department, 1100 W. Mallon, Spokane, WA.
RESPECTFULLY SUBMITIED this 2--1 July, 2011.

Petitioner
SUBSCRIBED AND SWORN to before me __ day of July, 2011.
ii" ....... UUUlUIIIIIIfIIII ........... 1IIIIIHIIC;l
Notary Public I
I State ofWulUapoa
I Every Jane Skellie
i MY CmPlllIlON IXF N:S I
i 1-12-1014 =
.. 1I1I11II ...... ,wsaeclll, li
AFFIDAVIT OF MICHAEL WALTERS IN SUPPORT
OF PETITION FOR WRIT OF MANDAMUS
Exhibit D
2.

Page 45
SUPERIOR COURT OF WASHINGTON
COUNTY OF SPOKANE
LAWRENCE CRONIN
VIRGINIA CRONIN
RICHARD HANSON
MICHAEL WALTERS
DOUGLAS TURNER
and
Petitioners,
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO.
FiLED
JUL 25 2011
TMQiVlAS R. F AI.!.QUISl
SPOKANE: COUNTY CLERk:
11203051-7
AFFIDAVIT OF DOUGLAS TURNER IN
SUPPORT OF PETITION FOR WRIT OF
MANDAMUS
Official Request of the Spokane Police Department
My name is Doug Turner. I am here to inform you that homicides are occurring
on an ongoing basis at Planned Parenthood at 123 E. Indiana Ave. in Spokane,
WA. I request that you investigate these homicides and take lawful action against
Planned Parenthood to stop the unlawful homicides occurring at this
organization. I am officially filing a homicide report with you at this time.
Clarifying question: Do abortions take place at Planned Parenthood?
Officer: > # ~
Response: __ ~ ' f L - ~ ____________________________________________________ __
1.

Page 46
..
I, DOUGLAS TURNER, being duly sworn upon oath, depose and say: I am over
the age of 18 years, speak to matters herein that are within my personal
knowledge and am, in all respects, competent to testify.
I made the request described on page 1. of this document and took the described
actions with
//hZ'/J
on July 21, 2011 at the Spokane Police Department, 1100 W. Mallon, Spokane,
WA.
RESPECTFULLY SUBMITTED this rJ ( July, 2011.

DO LA TURNER
Petitioner
SUBSCRIBED AND SWORN to before me this ;2 ( day of July, 2011.
AFFIDAVIT OF DOUGLAS TURNER IN SUPPORT
OF PETITION FOR WRIT OF MANDAMUS
Exhibit E
2.
<{:I
Notary in and for the State
of Washington.
My Commission expires: 0
3
(l-V(2.0t Lf

Page 47
1
2
3
4
5
6
7
8
9
FILED
AUG 1 9 ZOll
THOMAS R FAli.OUIST
SPOKANE COUNTY CLERK
SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
10 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
11 and DOUGLAS TURNER
No. 11-2-03051-7
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Petitioners,
v.
SPOKANE POLICE DEPARTMENT, and
CITY OF SPOKANE,
Respondents.
RESPONSE TO PETITION
FOR WRIT OF MANDAMUS
INTRODUCTION.
Come now respondents, City of Spokane and Spokane Police Department,
and respond as follows.
I. PARAGRAPH 1- RELIEF REQUESTED BY PETITIONERS.
In response to paragraph I, Relief Requested by Petitioners, these allegations
are legal conclusions and/or political opinions to which no response is required, and
are therefore denied.
RESPONSE TO PETITION FOR WRIT
27 OF MANDAMUS - 1
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225 28
FAX (509) 6256277

Page 48
1
II. PARAGRAPH 11- STATEMENT OF FACTS/
2
STATEMENT OF GROUNDS BY PETITIONERS.
3
In response to paragraph II. Statement of Facts/Statement of Grounds by
4
5
Petitioners. these respondents admit that petitioners requested SPD officers to
6
enforce the homicide laws against the practice of lawful abortion at Planned
7
Parenthood, and that officers explained that abortion is lawful and therefore they
8
would not initiate an investigation into an allegation of unlawful homicide. These
9
respondents further assert that the remainder of the allegations in said paragraph are
10
11
legal conclusions and/or political opinions to which no response is required. and that
12
these respondents are without sufficient information to form a belief as to the truth of
13 the remaining allegations in said paragraph.
14
III. PARAGRAPH 111- STATEMENT OF ISSUES/ARGUMENT.
15
In response to paragraph III, Statement of Issues/Argument (pages 3-33 of
16
17
the Petition). these respondents assert that all of the allegations are legal
1B
conclusions and/or political opinions to which no response is required and are
19 therefore denied.
20
IV. AFFIRMATIVE DEFENSES.
21
1. The petitioners do not have standing.
22
2. Mandamus is not available as a basis to challenge the constitutionality
23
24
of governmental action or inaction.
25
26
RESPONSE TO PETITION FOR WRIT
27 OF MANDAMUS - 2
Howard F. Delaney. City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Fjoor Municipal Building
Spokane, WA 992013326
(509)
28


Page 49
1 3_
There is no clear duty to act under the law to enforce criminal homicide
2
laws against the lawful practice of abortion.
3
4. A writ of mandamus compels an officer to perform a ministerial duty
4
5
and cannot be used for the purpose of compelling the performance of a duty which
6
requires the exercise of discretion.
7 5. Mandamus will not lie to compel a general course of official conduct, as
8
it is impossible for a court to oversee the performance of such duties.
9
6. Mandamus does not lie at the instance of an individual to enforce laws
10
generally, or to compel a general course of conduct. There must be some specific
11
12
right of the applicant involved differing from that pertaining to the general public.
13 7. Courts are not authorized to issue a writ of mandamus to order a state
14
officer to "adhere to the Constitution_"
15
AFFIRMATIVE DEFENSES
16
FURTHER, by way of reservation of rights, without waiver, respondent City
17
18
specifically reserves the right to amend its Answer by way of adding additional
19
Affirmative Defenses, Counter Claims, Cross-Claims, or instituting third-party actions
20
which may be appropriate after further investigation and discovery.
21
Wherefore, having fully answered plaintiffs' petition for writ of mandamus the
22
respondents pray as follows:
23
24
1. The petition for writ of mandamus should be dismissed with prejudice
25 and the petitioners take nothing thereby_
26
RESPONSE TO PETITION FOR WRIT
27 OF MANDAMUS - 3
28
Howard F. Delaney. City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 50
1
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2. The respondents be awarded their costs and disbursements in defending
this action.
3. For other such relief as the court may deem appropriate.
DATED this /f'fllday of August, 2011.
RESPONSE TO PETITION FOR WRIT
OF MANDAMUS - 4
R co N. Treppiedi, W
sistant City Attorney
ttomey for Defendant
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 6 2 ~ 2 2 5
FAX (509) 6256277

Page 51
1
2
3
4
5
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7
B
"
10
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DECLARATION OF SERVICE
I declare, under penalty of perjury, that on the I1f1t.day of August, 2011, I
caused a true and correct copy of the foregoing "Response to Petition for Writ of
Mandamus," to be delivered to the parties below in the manner noted:
Lawrence Cronin
6716 East Big Meadows Road
Chattaroy, WA 99003
Virginia Cronin
6716 East Big Meadows Road
Chattaroy, WA 99003
Richard Hanson
6716 East Big Meadows Road
Chattaroy, WA 99003
Michael Walters
6716 East Big Meadows Road
Chattaroy, WA 99003
Douglas Turner
6716 East Big Meadows Road
Chattaroy, WA 99003
RESPONSE TO PETITION FOR WRIT
[1 VIA FACSIMILE
Pf VIA U.S. MAIL
[1 VIA OVERNIGHT SERVICE
[1 VIA HAND DELIVERY
[1 VIA FACSIMILE
1<;1 VIA U.S. MAIL
[1 VIA OVERNIGHT SERVICE
[1 VIA HAND DELIVERY
[1 VIA FACSIMILE
1<f VIA U.S. MAIL
[1 VIA OVERNIGHT SERVICE
[1 VIA HAND DELIVERY
[1 VIA FACSIMILE
R VIA U.S. MAIL
[1 VIA OVERNIGHT SERVICE
[1 VIA HAND DELIVERY
[1 VIA FACSIMILE
M' VIA U.S. MAIL
[1 VIA OVERNIGHT SERVICE
[1 VIA HAND DELIVERY
27 OF MANDAMUS - 5
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 992013326
(509) 625-6225
28
FAX (509) 625--6277

Page 52
r------------------------------------------ ---- ----------
FILED
SFP 16 2011
THOMAS R. FALLQUIST
SPOKANE COUNTY CLERK
SUPERIOR COURT OF WASHINGTON, COUNlY OF SPOKANE
LAWRENCE CRONIN, VIRGINIA CRONIN
RICHARD HANSON, MICHAEL WALTERS
DOUGLAS TURNER
Petitioners,
vs.
SPOKANE POLICE DEPARTMENT,
CllY OF SPOKANE
Respondents.
NO. 11-2-03051-7
REPLY TO RESPONSE TO PETITION FOR
WRIT OF MANDAMUS;
REQUEST FOR A JURY TRIAL ON
QUESTION OF FACT
INTRODUCTORY STATEMENT TO THE REPLY
The Police/City Response should be denied. The Response to the Petition by the Police/City was
filed four days late. As per RCW 7.16.190(2010) the Police/City had a minimum of ten days to
respond; Petitioners allowed 20 days. Thus, the Response was due Monday, August 15
th
, 20
days after July 25
th
, but was not submitted until August 19
th
.Washington State Court Rules:
Superior Court Civil Rules. CR 6. We ask that the Court deny the Police/City Response and apply
sanctions for responding late. We are aware that the Writ cannot be granted by default.RCW
7.16.190(2010)
REPLY
The following is our REPLY to the POlICE/CllY RESPONSE, quoted here, before each reply.
"PARAGRAPH 1- RELIEF REQUESTED BY PETITIONERS
In response to paragraph I, Relief Requested by Petitioners, these allegations are legal
conclusions and/or political opinions to which no response is required, and are therefore
denied."
REPLY TO RESPONSE, PAGE 1.
Petitioners: Cronin, Hanson, Walters and Turner,
6716 E. Big Meadows Rd., Chattaroy, WA 9900

Page 53
The Police/City do not offer any evidence or logical argument as to why IIthese allegations are
legal conclusions and/or political opinions." They do not specify the lIallegations".
Response to: "political opinions": Our Petition is based on these words, (/ We need not resolve
the difficult question of when life begins."Roe v. Wade. With these words the Supreme Court
decided not to decide who human beings or persons are. This case ranks first in our history as:
1) a legal decision which is not a legal decision at all- based on these very words, as the Justices
did not judge, or, 2) a legal decision which was legally irrational.
The Roe Court goes on to justify its decision using an argument related to "viability" and
"trimesters" as relates to pregnancy. Subsequent legal decisions, including Planned
Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart have refuted these
arguments, showing them to have no basis in rational thought or legal argument. The Supreme
Court Justices themselves acknowledge this in their opinions in these cases. The case is
irrational because: 1) the Court stated they could not decide, then did; or, 2} because its logic
for deciding was irrational as proven in later cases. The Petition discusses all of these points.
If, as a result of the Supreme Court's decision and manner of "deciding" in Roe v Wade. the
topic has taken on a political aspect, this is due to the Supreme Courts' actions, not the
Petitioners' actions. If it is political, no case or argument can be made without it also becoming
political. This is not a legally justifiable reason to deny the hearing of this Petition.
The Petitioners hold no political opinions that they are arguing in the Petition and none are
presented.
Response to: "legal conclusions": As there is no court decision and no law defining when life
begins, we state in the Petition that "human beings" and llpersons" legally begin at conception
and their lives continue until death. The Ninth and Tenth Amendments guarantee all human
beings these and other rights unless limited by law or court decisions. They have not been so
limited, therefore all individuals from conception have an "equal right" to life, as per the
Fourteenth Amendment. The Petition makes a cogent argument regarding this based on the
Constitution, these Amendments and Supreme Court cases.
II "PARAGRAPH 11- STATEMENT OF FACTS/STATEMENT OF GROUNDS BY PETITIONERS
In response to paragraph II, Statement of Facts/Statement of Grounds by Petitioners, these
respondents admit that petitioners requested SPD officers to enforce the homicide laws against
the practice of lawful abortion at Planned Parenthood, and that officers explained that abortion
is lawful and therefore they would not initiate an investigation into an allegation of unlawful
homicide. These respondents further assert that the remainder of the allegations in said
paragraph are legal conclusions and/or political opinions to which no response is required, and
that these respondents are without sufficient information to form a belief as to the truth of the
remaining allegations in said paragraph."
REPLY TO RESPONSE, PAGE 2.

Page 54
We refer to our arguments in number I above. In addition, as the Supreme Court has not
decided when human life begins, or who human beings or persons are, the Police do not have a
legal right to decide this. We argue that abortion is homicide. We argue this in the Petition as
no law or court decision exists which prevents this conclusion.
The Police do not have the right to chose to enforce one law over another. They do have a
clear duty to act on the side of human life as per the laws and their own policies. We present
this legal argument in the Petition.
The Respondents mention "truth" in their last sentence. What is Truth? The Petitioners' case is
an attempt to seek and define "the truth". However, we recognize that when a Supreme Court
case is, in and of itself, not a legal decision or an irrational one, it is difficult to know the truth.
We are arguing our points rationally, logically and legally so that the truth may be known. We
are doing this via this Petition for a Writ of Mandamus.
This Petition for a Writ of Mandamus involves a question of fact, as opposed to the law, i.e.,
"legal conclusions" -as the Respondents state in three of their responses. The laws on
homicide, including manslaughter and the laws on abortion are unclear and inconsistent, as we
have argued in this Petition. Neither set of laws define who human beings or persons are. We
ask the Court to try the question before a jury as to the matter of this fact: who is a "human
being" and who is a "person", as this fact has not been determined by the courts or by the
legislature. This fact is the core element of our case, affects our rights and establishes the truth
upon which this Petition for a Writ of Mandamus is based. We ask the Court to postpone the
argument until such trial can be had and a verdict rendered on this matter of fact. RCW
7.16.210-7.16.240(2010)
The Police/City have not enumerated "remainder ofthe allegations in said paragraph", so we
do not know what they may be referring to.
III "PARAGRAPH 111- STATEMENT OF ISSUES/ARGUMENT
In response to paragraph III, Statement of IssueS/Argument (pages 3-33 ofthe Petition), these
respondents assert that all of the allegations are legal conclusions and/or political opinions to
which no response is required and are therefore denied."
We refer to our arguments in numbers I and II above.
The Police/City attempts to dismiss over 30 pages of substantive legal argument, with the terms
"legal conclusions and/or political opinions", without identifying or specifying the actual "legal
conclusions" or the alleged "political opinions". What the respondents assert needs to be
specified--so that we can discuss in this Court.
REPLY TO RESPONSE, PAGE 3.

Page 55
IV "AFFIRMATIVE DEFENSES
1. The petitioners do not have standing."
The Police/City makes no legal argument to justify their contention that we do not have
standing. We discuss this in the Petition, page 2, #3 and elsewhere. They have not disputed this
argument.
We are citizens and taxpayers of Spokane City and County. We support the Police Department.
We have a right to request that the homicide laws be enforced equally at all geographical
locations within the jurisdiction of the Spokane Police Department, as do all other citizens and
individuals.
We so requested and were denied our request. As a result this Uagency action has prejudiced"
each of the Petitioners. Our asserted interests as discussed in the Petition are the protection of
human life, via the enforcement of the homicide laws, the foundation of all of our laws, which
lithe agency was required to consider when it engaged in the agency action challenged."
Standing:RCW 34.05.530(2010)
We have standing in that: 1) the Police denied our request, which we have a legal right to make,
compared to similar requests; and, 2) the Police are not protecting our individual rights to
Public Safety compared to all other members ofthe community by denying our request; and, 3)
there is no internal policy that specifically prevents the Police from investigating these deaths
as homicide, as the Police policies agree with these human beings and persons' Constitutional
rights on this issue, as argued in the Petition. By denying our request the Police are not
"uphold(ing} the dignity, human rights, and constitutional rights of all persons.", as stated in
their own policies. Spokane Police Department, Policy Manual, Standard 1.6. We have been
"prejudiced" in all three instances thereby.
The rights of the Petitioners have been individually violated as per our discussion on page 2, #3
of the Petition. In Spokane, since 1973, over 40,000 individuals have been eliminated from each
ofthe Petitioners lives, which represents over 10% ofthe population. These individuals would
have affected each of the Petitioners lives in some way, as politicians, police officers, priests,
doctors, friends, or individuals who would have made a life-changing comment to us in the
park, or saved the life of someone we knew, or any number of other personal interactions or
life-changing events.
The homicide laws also protect our community as a whole. The homicide of one individual may
not affect many individuals, but every homicide does affect the community. This Petition for a
Writ of Mandamus is being sought in order to afford standing to legal human beings and
persons in relation to a civil authority.
REPLY TO RESPONSE, PAGE 4.

Page 56
2. ItMandamus is not available as a basis to challenge the constitutionality of governmental
action or inaction."
We find no language in the Mandamus law nor argument by the Police/City to support this
contention. RCW 7.16.150-7.16.280(2010) AI/laws follow the Constitution and its
Amendments, the supreme laws of our land. When certain laws of our land are not consistent
with the Constitution, the Constitution must be followed. The Mandamus law is one of many
that seeks to assure that the Constitution is adhered to by government agencies and their
actions.
3. "There is no clear duty to act under the law to enforce criminal homicide laws against
the lawful practice of abortion."
We do not argue that the "criminal homicide laws be enforced against the lawful practice of
abortion". We argue in the Petition that there is a clear duty to enforce the homicide laws,
based on the fact that abortion is homicide; and that if this is in doubt, there is a clear duty
under the Manslaughter section of the Homicide Laws; and that the Police do not have the right
to decide which laws they may enforce even if they conflict with one another. As these laws
are clear and the Police actions in enforcing them are clear in all other instances, they must be
followed in the instances we are discussing: all human beings and persons are legally such from
conception until death. This is argued forcefully in the Petition.
We apply our reply to PARAGRAPH I, to this response also.
4. itA writ of mandamus compels an officer to perform a ministerial duty and cannot be
used for purpose of compelling the performance of a duty which requires the exercise of
discretion./1
We argue as in 3. above. Human beings and persons exist from conception until death. There is
no discretion required by the Police in enforcing the homicide laws everywhere and equally
with all human beings and persons, as we argue in the Petition.
5. "Mandamus may not lie to compel a general course of official conduct, as it is
impossible for a court to oversee the performance of such duties."
There is no argument in the Petition to "compel a general course of official conduct" and the
Police/City do not provide any evidence ofthis in the Petition. The Petition does not seek the
court to oversee the performance of any duties.
6. "Mandamus does not lie at the instance of an individual to enforce laws generally, or to
compel a general course of conduct. There must be some specific right of the applicant
REPLY TO RESPONSE, PAGE 5.

Page 57
' '
involved differing from that pertaining to the general public."Mandamus does lie at the
instance of ucompel(ling) the performance of an act(homicide laws) which the law especially
enjoins as a duty resulting from an office, trust or station ... "RCW 7.16.160(2010)
The rights of the Petitioners specifically have been individually violated. The Police denied our
requests as documented in the Petition because they occurred at a building known as Planned
Parenthood; our requests would have been allowed as reported by any other individuals, if the
homicides had occurred at any other site in Spokane.
We also apply our argument in number I, as our reply to this question.
7. "Courts are not authorized to issue a writ of mandamus to order a state officer to
"adhere to the Constitution". II
We find no language in the Writ of Mandamus Law that would limit the Court from doing so as
a Writ is issued to "compel the performance of an act which the law especially enjoins as a duty
resulting from an office ... ". Although our Petition does not ask the court "to order state officers
to adhere to the Constitution", we believe we could do so as the Constitution is the supreme
law of the land. As citizens of the United States we are all required to abide by the laws of our
land--the Police included- all of which are based on the Constitution.
Additionally, the Spokane Police Departmenrs policies state that their primary responsibility as
individual members "is the protection of the people within the jurisdiction of the United States
through upholding of their laws, the most important of which are the Constitution of the United
States and the State Constitution and the laws derived therefrom." Standard 1.1. This is
discussed in the Petition. We see nothing here that we are in conflict with in Mandamus law.
Summary: We do not believe that the arguments stated by the Police/City of Spokane provide
a legal basis with which to deny us the right to have our Petition for a Writ of Mandamus heard
in Superior Court. This Petition involves the very first right--the right to be legally recognized
as a human being, a person-and to be protected under the laws of our land. As no court or law
has decided who a human being or person is, we request a jury trial, in order to decide the fact
of who "UlE tlie peopfl' are. This discussion belongs in a court of law, where we believe it should
have taken place. As Roe v Wade is a Supreme Court decision, no legislative action can resolve
this question of who a person or human being is. It must be resolved in a court of law, where it
began and was never rationally discussed or resolved. We make the statement that: human
beings and persons exist legally from conception until death, as is the peoples' right as provided
us in the Constitution and the Ninth, Tenth and Fourteenth Amendments. This is clearly and
legally argued in the Petition.
The Petitioners respectfully ask that their Petition for a Writ of Mandamus be heard in Superior
Court, in Spokane, Washington in this year.
REPLY TO RESPONSE, PAGE 6.

Page 58
-=:::=d and dated this of September, 2011,

L C . R' h d H
awrence rOnln Irglnla romn IC ar anson
/AtiilA
Michael Walters

Dd"Gglas Turner

Page 59
FILED
~ F P 27 2011
THOMAS R. FALLQUI$T
SPOKANE COUNTY CLERK
SUPERIOR COURT OF WASHINGTON, COUNTY OF SPOKANE
LAWRENCE CRONIN, VIRGINIA CRONIN
RICHARD HANSON, MICHAEL WALTERS
DOUGlAS TURNER
Petitioners,
vs.
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO. 11-2-03051-7
ADDENDUM TO:
REPLY TO RESPONSE TO PETITION FOR
WRIT OF MANDAMUS;
REQUEST FOR A JURY TRIAL ON
QUESTION OF FACT
Reason for this ADDENDUM
This ADDENDUM provides legal arguments, based on case law; and a recently reported Spokane
Police Action, which are here submitted as additions to the Petitioners' REPLY to the
City/Police's RESPONSE to the PETITION FOR WRIT OF MANDAMUS. The case citations, the
reported Spokane Police Action and arguments are presented as each relates to a specific,
"Affirmative Defenses", which the City/Police filed in their RESPONSE. Copies of all cases and
the Reported Police Action are attached in the order that they are discussed.
Affirmative Defenses and Addendum Replies
"1. The Petitioners do not have standing."
O'Connor v. Matzdorff, 76 Wn.2d 589,458 P.2d 154 (1969)
This Writ of Mandamus was filed by a woman who was trying to recover damages from a party
but did not have the fees to file the complaint in court. She filed a writ of mandamus to
proceed in forma pauperis as this had been denied to her by the court.
U[2] ... As the petitioner here maintains, the question whether she is entitled to pursue her
ADDENDUM TO REPLY, PAGE 1

Page 60
remedy at law for the alleged wrong, in spite of her poverty, raises a fundamental issue and one
which must be decided by this court ultimately, whatever the answer of the superior court
might be. We have said that we will assume original jurisdiction when the application involves
the "interests of the state at large, or of the public, or when it is necessary to afford an
adequate remedy ..... "
"Although only an individual's right is being asserted in this proceeding, the question to be
decided involves very deeply the interests of the public and in particular those of a regrettably
large segment of our society. The right of the poor to obtain redress for wrongs, and to defend
themselves when sued by the more affluent, is presently of nationwide concern, as is evidenced
by the attention given to the subject in legal periodicals ...... "
IIWe are convinced that the question presented in this case is of such significant public import
and urgency that we are justified in assuming original jurisdiction."
"[3] ... The purpose of the rules of practice and procedure adopted by this court is to simplify
and facilitate practice and, wherever possible, to eliminate delay in reaching a final
determination of litigation, civil or criminal, on the merits. No rule of this court was ever
intended to be an instrument of oppression or injustice or to deprive a litigant of his life, his
liberty or his property without due process of law."
"[4, 5] The inherent power of this court is the power to protect itself; the power to administer
justice whether any previous form of remedy had been granted or not; the power to
promulgate rules for its practice and the power to provide process where none exists ..... "
"In the matter presently before the court, we need only determine whether the petition is
urged in good faith and presents an issue of probable substance, and we are convinced that it
does."
"Application filed in the Supreme Court September 11,1968, for a writ of mandamus. Granted."
State of Washington, on the Relation of Romano v. Yakey, 43 Wash. 15, 85 P.990 (1906)
This Writ of Mandamus was filed by a man who had been found guilty of assault with intent to
murder. He had later produced witnesses who were willing to state that the two people who
testified against him at his trial, were guilty of the crime of perjury.
liThe first objection is that the relator is not a party beneficially interested. Of course, the fact
that he was convicted on the testimony of these witnesses gives him no special interest in this
proceeding. There is, no doubt, a conflict of authority as to whether a private party can be the
relator in an application for a writ of mandamus concerning a public right or duty. In discussing
ADDENDUM TO REPLY, PAGE 2

Page 61
this question in State ex. Rei. Piper v. Gracey, 11 Nev. 223, the court said: "Upon this
proposition there is an irreconcilable conflict in the decisions of the different states. In Maine,
Massachusetts, Pennsylvania, Michigan, and California, they fully support the position of
respondents, and hold that to entitle a private citizen to move for and prosecute the writ, he
must show that he has some private or special interest to be subserved, or some particular
right to be pursued and protected, independent of that which he holds in common with {*19}
the public at large, and that 'it is for the public officers to apply when public rights alone are to
be subserved ..... But we think the better and more reasonable rule is established by the
decisions of the courts of New York, Ohio, Indiana, Illinois, and Iowa, which hold the opposite
doctrine, and maintain that when the question is one of public right, and the object of the
mandamus to procure the enforcement of a public duty, the relator is not required to show
that he has any legal or special interest in the result, it being sufficient if he show that he is
interested, as a citizen, in having the laws executed and the right enforced ...... "
The Supreme Court of Washington denied the Petitioner's Writ on other grounds.
Our case is one of "significant public import and urgency". We have shown via our PETITION
that we are "interested in having the laws executed and the right enforced ...... " We present
these cases to show that we do have standing via our REPLY and PETITION FOR A WRIT OF
MANDAMUS and the arguments therein.
1/2. Mandamus is not available as a basis to challenge the constitutionality of governmental
action or inaction."
Cooper v. Aaron, 358 U.S. 1 (1958)
Although a Writ of Certiorari, we believe the eloquence of this Supreme Court decision
regarding its discussion of the lllittle Rock Nine" high school students and its relevance to and
legal justification of Washington State's Writ of Mandamus law, specifically: RCW 7.16.160; as
well as its discussion of the Court's power and authority based on the Constitution in all cases
of law, allows us to use this in our ADDENDUM TO REPLY. This case was a test of Brown v.
Board of Education of Topeka, 347 U.S. 483 (1954)
"The controlling legal principles are plain. The command of the Fourteenth Amendment is that
no "State" shall deny to any person within its jurisdiction the equal protection ofthe laws. "A
State acts by its legislative, its executive, or its judicial authorities. It can act in no [358 U.s. 1.
17] other way. The constitutional provision, therefore, must mean that no agency ofthe State,
or of the officers or agents by whom its powers are exerted, shall deny to any person within its
jurisdiction the equal protection of the laws. Whoever, by virtue of public position under State
government.. ... denies or takes away the equal protection of the laws, violates the constitutional
inhibition; and as he acts in the name and for the State, and is clothed with the State's power,
ADDENDUM TO REPLY, PAGE 3

Page 62
his act is that of the State. This must be so, or the constitutional prohibition has not
meaning."Ex parte Virginia, 100 U.S.339, 347. Thus the prohibitions ofthe Fourteenth
Amendment extend to all action of the State denying equal protection of the laws; whatever
the agency of the State taking the action ..... "
liThe Constitution created a government dedicated to equal justice under the law. The
Fourteenth Amendment embodied and emphasized that ideal. State support of segregated
schools through any arrangement, management, funds, or property cannot be squared with the
Amendment's command that no State shall deny any person within its jurisdiction the equal
protection of the laws ..... "
'The historic phrase 'a government of laws and not of men' epitomizes the distinguishing
character of our political society. When John Adams put that phrase into the Massachusetts
Declaration of Rights he was not indulging in rhetorical flourish. He was expressing the aim of
those who, with him, framed the Declaration of Independence and founded the Republic. fA
government of laws and not of men' was the rejection in positive terms of rule by fiat, whether
by the fiat of governmental or private power. Every act of government may be challenged by
an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a
time. Being composed of fallible men, it may err. But revision of its errors must be by orderly
process of law ..... "
IINo one, no matter how exalted his public office or how righteous his private motive, can be
judge in his own case. That is what courts are for. United States v. United Mine Workers, 330
U.s. 258, 307-309{concurring opinion)."
Certiorari Granted, unanimous opinion, United States Supreme Court, September 12, 1958
The Police cannot support the deaths of human beings at any building in Spokane, WA, just as
the "schools supported segregation". The Police cannot rule by "fiat" that human beings and
persons do not exist from conception until death. The Police must abide by the Constitution.
These powerful and eloquent legal points are similarly, though not so eloquently, argued in the
REPLY and PETITION FOR A WRIT OF MANDAMUS.
D.C.R. Entertainment, Inc. v. Pierce County, 55 Wn. App. 505, 778 P.2d 1060 (1989)
This Writ of Mandamus case involved the right of an adult entertainment business to obtain a
county license to operate.
"[2] .... These provisions may not be applied to adult entertainment licenses because a license to
engage in constitutionally protected expression may not be denied based on the "character of
the applicant" or the "effects upon the general welfare." And, "[6J] Nude dancing is protected
ADDENDUM TO REPLY, PAGE 4

Page 63
expression under the First Amendment, 452 U.S. 61, 66, 68l.Ed 2d 671, 101 S. Ct. 2176
{1981} .... The prevailing view under the First Amendment is that nude dancing is entitled to the
same degree of protection as is expression at the core of the amendment. SEE KEV, INC. v.
KITSAP CY., 793 F.2d 1053, 1058 {9
th
Cir. 1986) .... "
"NATURE OF ACTION: The Superior Court for King County, No. 87-2 17312-7, Jim Bates, J., on
February 10, 1989, granted a writ of mandamus and awarded the plaintiff attorney fees."
We present this case to show that a Writ of Mandamus can be used as a basis to challenge the
constitutionality of governmental action or inaction, which we state and argue in our PETITION.
"4. A writ of mandamus compels an officer to perform a ministerial duty and cannot be used for
purpose of compelling the performance of a duty which requires the exercise of discretion. "
Reported Spokane Police Action, The Spokesman Review. Friday. September 23.2011. pg. A-7
The Spokane Police served a search warrant for an "aborted fetus" at Planned Parenthood, at
the East Indiana Clinic, during the week past, of September 23, 2011. The Spokane Police
Department obtained an aborted fetus and his/her fetal tissue.
The police investigation of the crime of rape is lithe performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station ... "RCW 7.16.160, as is the
investigation of unlawful homicides. As our Petition argues that all individuals are human beings
and persons from conception until death, the Police have a duty to perform homicide
investigations at Planned Parenthood at 123 E. Indiana, in Spokane, WA, as "aborted fetuses"
exist at Planned Parenthood. No discretion by the Police is involved when a building contains
human bodies and body parts; fetuses are human beings and persons, as we argue in our
PETITION. The Spokane Police are exercising discretion that they do not legally have a right to
exercise as argued in our REPLY and PETITION FOR A WRIT OF MANDAMUS.
We also apply this argument in our reply to number 1/1.", above.
"6. Mandamus does not lie at the instance of an individual to enforce laws generally, or to
compel a general course of conduct. There must be some specific right of the applicant involved
differing from that pertaining to the general public."
We apply our answer to number "1.", above, as our reply to this City/Police RESPONSE, in
addition to our argument in the REPLY.
'7. Courts are not authorized to issue a writ of mandamus to order a state officer to lIadhere to
the Constitution"./I
ADDENDUM TO REPLY, PAGE 5

Page 64
We do not amend our answer in the REPLY, but we add our answer to number 112.", above, to
this City/ Police RESPONSE.
Summary: We refer to our summary in our REPLY. The Petitioners respectfully ask that their
PETITION FOR A WRIT OF MANDAMUS be granted in the Superior Court of Washington, County
of Spokane, this year, 2011.
Further, by way of reservation of rights, without waiver, Petitioners reserve the right to amend
its REPLY by way of adding additional REPLY addendums, which may be appropriate after
further investigation and discovery.
ADDENDUM TO REPLY, PAGE 6

Page 65
Respectfully submitted this of September, 2011,



Lawrence Cronin Virginia Cronin Richard Hanson

Michael WaltersDou s Turner

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76 Wn.2d 589, GLENNIE O'CONNOR, Petitioner, v. CHARLES MA TZDORFF et at, Respondents
[No. 40550. En Banc. Supreme Court August 28,1969.]
GLENNIE O'CONNOR, Petitioner, v. CHARLES MA TZDORFF et at,
Respondents. *
[1] Mandamus - Jurisdiction - Supreme Court - Courts of Umited Jurisdiction. The Supreme Court has jurisdiction to hear
and grant an application for an extraordinary writ directed to a court of limited jurisdiction.
[2] Mandamus - Nature and Grounds - Supreme Court - Wlen Available. Under Const art 4, 4, giving the Supreme
Court the power to issue writs of mandamus when necessary and proper to the complete exercise of appeHate jurisdiction,
the power is properly exercised when a fundamental issue involving the rights of the petitioner is presented which reflects
the interests of the state at large or of the public, or when it is necessary to afford an adequate remedy.
[3] Mandamus - In Forma Pauperis - Supreme Court For purposes of an application for mandamus in the Supreme Court,
the test for indigence and a proceeding in forma pauperis is whether the petitioner's impoverishment substantially and
effectively impairs or prevents his pursuit of the remedy.
* Reported in 458 P.2d 154.
[3] See 6 Al.R. 1281; 20 Am. Jur. 2d, Costs 47-49.
590 O'CONNOR v. MATZOORFF [76 Wn.2d 589
[4] Appeal and Error - Courts - Procedure - Supreme Court - Waiver of Rules. The power of the Supreme Court to make
rules carries with it the inherent power to waive them or except a particular case when justice demands it.
[5] Appeal and Error - Courts - Procedure - Supreme Court - Waiver of Fees in a Civil Proceeding. The Supreme Court
has inherent power to waive fees specified in ROA 10 and the statutory ones contained in RCW
2.32.070, both of which provide for collection by the clerk. Other requisites being met, the matter must be urged in good
faith and present an issue of probable substance.
[61 Courts of Umited Jurisdiction - Procedure - Waiver of Fees in Civil Action. The courts of limited jurisdction exercise a
portion of common law jurisdiction and, as part of their inherent power, have the authority to waive prepayment of statutory
court fees in a civil matter when justice requires such action. Whether or not the court exercises this authority depends
upon a shOwing of poverty and upon whether the claim is brought in good faith and with probable merit
[7] Mandamus - Discretionary Functions - Public Officer. Although mandamus will not lie to compel the performance of a
discretionary act, it is available to direct an officer to exercise a discretion, which it is his duty to exercise.
Application filed in the Supreme Court September 11, 1968, for a writ of mandamus. Granted.
Charles E. Ehlert, for petitioner.
Lincoln E. Shropshire, Jon R Harlan, and Campbell Hopkins, for respondents.
John Gant, amicus curiae.
ROSELLlNI, J. -
On August 19, 1968, Glennie O'Connor, through her attorney, tendered a complaint for replevin and
damages in the total amount of $215.50 to the Honorable George H. Mullins, Judge of the Yakima
Justice Court, and to his clerk, for filing. She did not tender any money for fees, and instead tendered
her motion and affidavit for leave to proceed in forma pauperis. Judge Mullins and his clerk refused
to accept the complaint and to issue a notice of suit to the named defendants on the sole ground that
she had not paid the filing fee of $3.50.
In refusing to accept the complaint or issue notice of suit without payment of fees, the respondents
relied upon RCW 3.16.070 and 27.24.070(1). They provide:
Aug. 1969] O'CONNOR v. MATZOORFF 591
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3.16.070 Fees of nonsalaried justices. The fees and compensation of justices of the peace shall be
as follows, to wit:
'Mlen each case is filed the sum of two dollars shall be paid by the plaintiff, which said sum shall
include the docketing of the cause, the issuing of notice and summons, the trial of the case and the
entering of judgment:
27.24.070 Additional filing fees. In each county pursuant to this chapter, the clerk of the superior
court shall pay from each fee collected for the filing in his office of every new probate or civil matter,
including appeals, abstracts or transcripts of judgments, the sum of three dollars for the support of
the law library in that county, which shall be paid to the county treasurer to be credited to the county
law library fund. There shall be paid to each justice of the peace in every civil action commenced in
such court where the demand or value of the property in controversy is one hundred dollars or more,
in addition to the other fees required by law the sum of one dollar and fifty cents as fees for the
support of the law library in that county which are to be taxed as part of costs in each case:
(1) By each person instituting an action, when the first paper is filed;
(2) By each defendant, other adverse party, or intervenor, appearing separately when his
appearance is entered on his first paper filed.
The justice of the peace shall pay such fees so collected to [the] county treasurer to be credited to
the county law library fund.
Her application for leave to proceed in forma pauperis having been refused, Glennie O'Connor
petitioned this court for a writ of mandamus ordering the respondents to accept and file her complaint
and to issue notice of suit thereon, without the payment of any filing fee.
[1] The first question presented is whether the petitioner has pursued the proper remedy. 'Mlile the
ordinary procedure is to petition the superior court for review of an inferior court's decision, rather
than the supreme court, this court does not lack jurisdiction to entertain an application for an
extraordinary writ directed to a court of limited
592 O'CONNOR v. MATZOORFF [76 Wn.2d 589
jurisdiction. In Seattle v. Rohrer,
69 Wn.2d 852,420 P.2d 687 (1966), we held that this court has original jurisdiction to issue a writ of
prohibition to a municipal court, under the authority of Const. art. 4, 4, providing in part that the
supreme court shall have power to issue writs of prohibition which are necessary and proper to the
complete exercise of its appellate jurisdiction.
[2] This constitutional provision also authorizes the issuance of writs of mandamus for such purpose.
We said in Seattle v. Rohrer, supra, that the power is properly exercised when a fundamental issue
involving the rights of the petitioner is presented. As the petitioner here maintains, the question
whether she is entitled to pursue her remedy at law for an alleged wrong, in spite of her poverty,
raises a fundamental issue and one which must be decided by this court ultimately, whatever the
answer of the superior court might be.
We have said that we will assume original jurisdiction when the application involves the "interests of
the state at large, or of the publiC, or when it is necessary to afford an adequate remedy." State ex
ret Pacific Bridge Co. v. Washington Toll Bridge Authority, 8 Wn.2d 337, 112 P.2d 135 (1941).
Although only an individual's right is being asserted in this proceeding, the question to be decided
involves very deeply the interests of the public and in particular those of a regrettably large segment
of our society. The right of the poor to obtain redress for wrongs, and to defend themselves when
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sued by the more affluent. is presently of nationwide concern, as is evidenced by the attention given
to the subject in legal periodicals. Some notable discussions are to be found in the following:
Samore, Legal Services for the Poor, 32 Albany L. Rev. 509 (Spring 1968); Shriver, Law Reform and
the Poor, 17 Am. U.L. Rev. 1 (Dec. 1967); Stumpf, Law and Poverty: A Political Perspective, 3 Wis.
L. Rev. 694 (1968); Silverstein, Waiver of Court Costs and Appointment of Counsel for Poor Persons
in Civil Cases, 2 Valparaiso U.L. Rev. 21 (Fall 1967); Barvick, Legal Services and the Rural Poor, 15
Kan.L.Rev.537(1967).
Aug. 1969] O'CONNOR v. MA TZDORFF 593
The leading article was written years ago by John Mac-Arthur Maguire, Poverty and Civil Litigation,
36 Harv. L. Rev. 361 (Feb. 1923), reviewing the history of the relations between poor people and the
courts and lamenting the slowness of the movement toward justice for the indigent. See also a book
by J. Comer, Forging the Federal Indigent Code (1966).
We are convinced that the question presented in this case is of such Significant public import and
urgency that we are justified in assuming original jurisdiction.
The petitioner has requested permission of the court to proceed here in forma pauperis. The record
shows that Glennie O'Connor is a woman with five children. She is not employed. The sole source of
support for her and her children is a monthly grant received from the Department of Public
Assistance in the amount of $325, computed by the department to provide her and her children with
slightly less than they need for basic subsistence. The grant is calculated according to a set of
minimum values for the basic needs for the family compatible with minimum standards of decency.
No provision is made in Mrs. O'Connors public assistance grant for any money for filing fees or
expenses of civil litigation. This is conceded by the respondent. 1
It might seem at first blush that an annual income of $3,900 is adequate to provide the necessities of
life and allow $3.50 for a justice court filing fee. However, the Social Security Administration has
defined as poverty stricken in the year 1968 a family of four having an income of less than $3,335
per year. According to this definition, assuming the needs of each member of the family are equal,
the subsistence needs of an individual require an income of at least $800, and the minimum
requirements of a family of six would be $4,800. The Seattle Post-Intelligencer, in an editorial
appearing April 18, 1969, reported that, while a family income of $3,000 is considered the poverty
level
1 The Department of Public Assistance apparently has no funds which can be made available to the poor for the
payment of court costs. See Silverstein, 2 Valparaiso U. L. Rev., supra, note 100, at 40.
594 O'CONNOR v. MATZDORFF [76 Wn.2d 589
nationally, it is estimated at $4,000 in Seattle, or 33 1/3 per cent higher than the national level. The
editorial does not mention the size of the family to which it refers, but since the Social Security
Administration's figure, which is slightly higher than $3,000, applies to a family of four, presumably it
is a family of four of which the editorial speaks.
It is generally conceded that a family on relief is indigent. See Samore, 32 Albany l. Rev., supra at
512.
[3] This court has recently had occasion to discuss the concept of indigence in a case involving the
right of a defendant in a criminal case to obtain a prepaid statement of facts and transcript in a
nonfrivolous appeal. We held that the term does not and cannot, in keeping with the concept of equal
justice to every man, mean absolute destitution or total insolvency. Rather it connotes a state of
impoverishment or lack of resources on the part of the defendant which, when realistically viewed in
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the light of everyday practicalities, substantially and effectively impairs or prevents his pursuit of his
remedy. State v. Rutherford,
63 Wn.2d 949, 389 P.2d 895 (1964).
The petitioner there was conditionally denied the right to obtain a free statement of facts and
transcript, the court being of the opinion that, because of his assets (though heavily encumbered),
his reputation as a businessman and his credit rating, he coutd possibty borrow the necessary funds,
giving reasonable assurance that he would be able to repay the loan. He was given leave, however,
to renew his application, if he was unable to obtain such a loan, this court recognizing that, unless his
credit was sufficient to enable him to obtain a loan, he was, for all practical purposes, as far as
paying the large cost of a statement of facts was concerned, indigent
We think it is plain, and it is not disputed by the respondents, that the assets of the petitioner are
insufficient to permit her to pay the costs of pursuing her remedy in this court without depriving her
children of a portion of
Aug. 1969] aCONNORv.MATZDORFF 595
their baSic needs. 2 The request for permission to proceed here in forma pauperis should therefore
be granted if this court has the power to grant such permission.
The respondents point out that our Rule on Appeal 10, RCW vol. 0, directs the clerk not to file any
paper on the part of any party to a proceeding until the statutory docket fees, chargeable against
such party, have been paid, except in the case of indigent criminal appeals. They point out that the
statutes authorize appeals in forma pauperis only in criminal cases. They also cite State v. Currie,
200 Wash. 699, 94 P.2d 754 (1939), in which this court held that its rules prescribing the time in
which documents should be filed in an appellate proceeding could not be waived.
I n that case, this court noted that the rule in question had been adopted after lengthy and thorough
consideration of the need for expediting appeals in criminal cases, and that the rule had been
promulgated at the direct command of the legislature to "promote the speedy determination of
litigation." It had, this court said, as a result, the force and effect of a statute, and the court was
powerless to engraft exceptions or excuse its violations.
14, 5] We did not say in that case that all of our rules have the force and effect of statutes which must
be inexorably applied. And, in fact, we have since suspended the rules where justice demanded it. In
State v. Brown,
26 Wn.2d 857,865, 176 P.2d 293 (1947), (noted in 55 A.L.R. 2d 1114), a capital case, we said:
The purpose of the rules of practice and procedure adopted by this court is to simplify and facilitate
the
2 In Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339, 93 LEd. 43, 69 S. Ct. 85 (1948), the United States
Supreme Court said:
We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an
affidavit is sufficient which states that one cannot because of this poverty "payor give security for the costs ... and still be
able to provide" himself and dependents "with the necessities of life." To say that no persons are entitled to the statute's
benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make
themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its
beneficiaries into the category of public charges.
596 O'CONNOR v. MATZOORFF [76 Wn.2d 589
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practice and, wherever possible, to eliminate delay in reaching a final determination of litigation, civil
or criminal, on the merits. No rule of this court was ever intended to be an instrument of oppression
or injustice or to deprive a litigant of his life, his liberty, or his property without due process of law.
We made it clear in that case, however, that only in extreme cases would the court exercise its rule-
making power to suspend the operation of its existing rule to permit a party to have his day in court.
Again, in State ex reI. Bird v. Superior Court,
30 Wn.2d 110, 190 P.2d 762 (1948), we held that a "jurisdictional" procedural requirement, that of
timely filing of the notice of appeal. could be waived by the court where the defendant in a capital
case was deprived of his right of appeal because of circumstances for which various public officials
were responsible.
While this court again asserted that the timely filing of a statement of facts is jurisdictional in Hamilton
v. Kiona-Benton Irr. Dist., 44 Wn.2d 421,268 P.2d 446 (1954), we have since rejected the concept
that the timely filing of a statement of facts is jurisdictional and recognized that it is only a step in the
proceedings, resting upon the jurisdiction originally acquired by the court in the cause. ROA 34. And
in ROA 32, we have said that the only jurisdictional requirement is the timely filing of notice of appeal
(note that, according to State ex rei. Bird v. Superior Court, supra, even that rule can be suspended),
and that failure to take other steps may render the appeal dismissable if no other remedy is provided
in the rules, in the discretion of this court.
In these new rules of court we have recognized the validity of the dissents of Judge Herman in
Potlatch Lumber Co. v. Ferry County. 167 Wash. 491, 9 P.2d 783 (1932). and Judge Grady in
Hamilton v. Kiona-Benton lIT. Dist, supra, both of whom earnestly contended that the power to make
rules carries with it the power to waive them or to except a particular case from their operation
whenever the purpose of justice so requires. They cited United States v. Breitling,
Aug. 1969] O'CONNOR v. MATZOORFF 597
61 U.S. (20 How.) 252 (1857), wherein the United States Supreme Court declared this to be the
correct rule.
We hold therefore that we have the inherent power to waive the requirements of our rules. The
question remains whether we also have the power to waive prepayment of a filing fee, when the fee
is prescribed by statute. The applicable statute here is RCW
2.32.070. This statute provides that the clerk of the court shall collect certain fees which are provided
therein. Certain exceptions are made. It might be suggested that, by expressing certain exceptions,
the legislature expressed an intent that no other exceptions should be allowed. However, if such an
interpretation would result in depriving the court of one of its inherent powers, and the petitioner of
one of his valuable rights as a member of a free society ruled by law, it is manifest that this court
should not indulge in a presumption that this was the legislative intent.
The question then arises, has the court the inherent power to waive fees prescribed by statute.
It is Significant that in State v. Brown, supra, this court had no trouble in recognizing the right of the
defendants to appeal in forma pauperis, at least insofar as the payment of court fees was concerned,
even though the dissent pOinted out that no statute authorized such an appeal, and even -though this
court had previously held that the defendant in a criminal case had no right to obtain a free transcript
on appeal. This was the holding of State ex rei. Mahoney v. Ronald, 117 Wash. 641, 202 P. 241
(1921), State ex rei. Langhorne v. Superior Court, 32 wash. 80, 72 P. 1027 (1903), and Stowe v.
State, 2 Wash. 124,25 P. 1085 (1891). See also Bokien v. State, 14 Wash. 401,44 P. 883 (1896).
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A contrary decision was reached in State ex rei. Coella v. Fenimore, 2 Wash. 370, 26 P. 807 (1891),
wherein this court held that a defendant in a criminal case could obtain a free transcript of the record.
'M1ile this case was criticized in subsequent Washington cases, it has now been demonstrated to be
in accord with the requirements of the federal and state constitutions, which guarantee the rights of
criminal defendants. We are confident that no citation of
598 O'CONNOR v. MATZOORFF [76 'Nn.2d 589
authority is necessary to support this conclusion, the United States Supreme Court decisions
regarding these rights having entered the domain of common knowledge.
In State ex rei. Mahoney v. Ronald, supra, while holding that there is no right of appeal in forma
pauperis in criminal cases, this court impliedly recognized that the right existed at common law in
civil cases, when it said, at 644:
At common law there was no right of appeal in criminal cases, and the English statute providing for
suits by poor people without the payment of fees did not apply to criminal appeals.
That such a right did exist at common law is acknowledged by students of that law. Their findings are
well expressed in the following discussion taken from an annotation, Financial circumstances which
will enable one to sue in forma pauperis.
6 A.l.R. 1281 (1920) states:
There seems to be no doubt that some indulgence to poor persons in bringing their actions existed
from a very early period.
It is said in Britton, bk. 1, chap. 14, Views on Disseisin, p. 117B, that "it is the sheriffs duty to take
pledges, two at least, distrainable to himself, that the plaintiff will prosecute his plaint, except where,
on account of his poverty. we have permitted him to sue his plaint upon the pledge of his promise
only; and then he shall find no other security to the sheriff."
It is stated in the Mirrour of Justices, chap. 1, 3, that
"it was ordained that no action was receivable to judgment, if there was not a present proof by
witnesses or other things; and that none was bound to answer to any suit, nor to appear to any
action in the King's courts before the King's justices, before they found sureties to answer damages
and the costs of suit, if damages lay in the case, except in four offenses, -Disseisins, certification of
disseisins, attaints, redisseisins, and other cases. To which ordinance King Henry the First put this
mitigation in favor of poor plaintiffs, that those who had not sufficient sureties present should make
satisfaction according to their ability, according to a reasonable taxation."
In Brunt v. Wardle (1841) 3 Mann. & G. 534, 133 Eng. Reprint, 1254, Tindal, Ch. J., said: "But, after
all, is the
Aug. 1969] O'CONNOR v. MATZDORFF
599
11 Hen. VII. chap. 12, anything more than confirmatory of the common law? In the learned report of
the Serjeants's case by my brother Manning, p. 41, note (d), a case is referred to that occurred in the
15 Edw. IV., twenty years before the passing of that act, from which it appears that at common law if
a party would swear that he could not pay for entering his pleadings, the officer was bound to enter
them gratis; and that in this court there was a presignator pur les poers." Maule, J., in the same case
took a similar view.
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So at an earlier stage of the reported case (Majors v. Superior Ct. ante, 1274) reported sub nom.
Martin v. Superior Ct (1917) 176 Cal. 289, L.R.A. 19188, 313, 168 Pac. 135, it was held that the
power of the courts to remit fees in forma pauperis was inherent at common law.
But some of the authorities have taken the view that the right to sue in forma pauperis originated in
statute.
Thus, in Oldfield v. Cobbett (1845) 1 Phill. Ch. 613, 41 Eng. Reprint, 765, Lyndhurst, Ld. Ch., said
that "the right to sue in forma pauperis originated in the statute of Hen. VII." So it is stated that the
right originated in statute in Roy v. Louisville, N. O. & T. R. Co. (1888) 34 Fed. 276; Bristol v. United
States (1904) 63 C. C. A. 529, 129 Fed. 87; Hoey v. McCarthy (1890) 124 Ind. 464,24 N. E. 1038;
Harrison v. Stanton (1896) 146 Ind. 366, 45 N. E. 582. The last of these cases cites the authority of
Tidd's Practice, but Tidd makes no such statement. On the other hand in Ferguson v. Dent (1883) 15
Fed. 771, the court apparently gives Tidd as authority for the statement that the common law allowed
poor persons to sue in forma pauperis.
In Campbell v. Chicago & N. W. R. Co. (1868) 23 VVis. 490, the court affirmed a dismissal of an
action because the plaintiff, through inability, failed to give security for costs, stating that there was
no statute authorizing a person to sue in forma pauperis, and that the matter was one for the
legislature.
By the statute 11 Hen. VII. chap. 12, it was provided "that every poor Person or Persons, which have,
or hereafter shall, have Cause of Action or Actions against any Person or Persons within this Realm,
shall have by the Discretion of the Chancellor of this Realm for the time being, Writ or Writs Original,
and Writs of Subpoena, according to the Nature of their Causes, therefore nothing paying to your
Highness for the Seals of the same,
600 O'CONNOR v. MATZDORFF [76 Wn.2d 589
nor to any Person for the writing of the same Writ and Writs to be hereafter sued;" etc., etc.
The statute 23 Hen. VIII. chap. 15, as to costs in case of nonsuits or verdicts against the plaintiffs,
provided that all and every such poor person or persons admitted by discretion of the judges to have
their process and counsel of charity, without any money or fee paying for the same, shall not be
compelled to pay any costs by virtue and force of this statute, but shall suffer other punishment as by
the discretion of the judge shall be thought reasonable.
We think the authorities cited in the annotation sufficiently establish that courts have found within
their powers an inherent power to waive the prepayment of court fees, where a suitor or defendant
has shown that he is impoverished, regardless of statutory authority. We are also convinced that
such a power is in harmony with the court's duty to see that justice is done in the cases which come
before it, which fall within its jurisdiction. In re Bruen, 102 Wash. 472, 476, 172 P. 1152 (1918),
states:
The inherent power of the court is the power to protect itself; the power to administer justice whether
any previous form of remedy had been granted or not; the power to promulgate rules for its practice,
and the power to provide process where none exists. It is true that the judicial power of this court was
created by the constitution, but upon coming into being under the constitution, this court came into
being with inherent powers.
The respondent contends that RCW
2.32.080 impliedly forbids the supreme court to waive filing fees for extraordinary writs. That statute,
by its terms, applies onry to criminal actions and we need not pass upon its validity.
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The question remains whether the court should exercise the power to waive its fees in a given case.
Frivolous appeals or petitions should not be encouraged, since the defendant has little hope of
recovering his costs from the indigent plaintiff if he defeats the action.
As the annotation reveals, it was the custom, or at least was said to be the custom, to punish a poor
man whose suit was unsuccessful. That was not found to be a very
Aug. 1969] O'CONNOR v. MATZDORFF 601
satisfactory method of discouraging frivolous litigation for the obvious reason that it was too harsh;
and it is now generally thought that it is sufficient to require an affidavit that the suit is brought in
good faith, or if possible an attorney's affidavit that it has apparent merit, if the court has no means of
making an independent investigation. Maguire, 36 Harv. L Rev., supra, in his article suggests that a
comprehensive legislative program should be enacted, providing among other things for the hiring of
investigators to serve the court. See page 399 of the article.
The fear has been expressed that, if the poor are allowed to litigate without paying the "deterring"
court fees, they will inundate the courts with frivolous cases. This attitude overlooks the fact that the
poor are most often ignorant of judicial processes, except insofar as they are the victims of such
processes. Not only do they not know what remedies exist for the wrongs done them and not only
are they ignorant of the procedures for availing themselves of these remedies, but their attitude
toward the courts is one of fear. 3
3 See Barvick, 15 Kan. L Rev., supra at 539. He says, speaking of the poor in general: "[A proposed] program should
educate the poor regarding existing laws, provide, through lawyers, representation and counseling where needed, and take
steps to remedy injustice where the law and its administration have treated the poor unjustly. As one of the causes of
poverty may be the social relationship of the poor to the rest of the community, these relationships should be examined and
when necessary, steps should be taken to change them.
"Ignorance and misunderstanding surround the poor's view of the law. To them the law has a magical quality, lawyers are
the magicians, and the victims of the lawyer's tricks are the poor. Lawyers are the masters of technicalities, and
technicalities stand in the way of fair treatment They do not see the law as a reasonable means of resolving disputes or
adjudicating rights. Instead, they view it as arbitrary, capricious, and unrestrained. The law is a policeman, a magistrate
judge, and a welfare administrator, persons with unlimited power, from whose decisions there is no appeal. This is all part
of the hopelessness associated with being poor. Because they cannot visualize legal remedies helping. them, the poor
develop extra-legal remedies: when they buy defective goods, the defense is nonpayment; when their landlords fail to
provide heat or repairs, the defense is to sneak off without paying the rent; when the welfare laws seem to deprive them of
the help their families need, they lie and develop subterfuges to get around the regulations. In other words, when the law
fails to be fair, they circumvent it It should be noted, however, that the poor are not the only ones who have resorted to
such tactics. The best illustration of the same kind of deceit, subterfuge, and dishonesty on a larger scale was the public
reaction to national prohibition."
602 O'CONNOR v. MA TZOORFF [76 Wn.2d 589
The experience of the small claims courts should demonstrate how groundless is the fear that the
poor will abuse the judicial process. The original purpose of these courts was to help the poor to
recover small claims without the aid of counsel. According to Professor Sam ore , that purpose has
failed miserably. Samore, supra, citing Kronheim, XX Va. L Weekly, Dicta NO.7 (1967) and Murphy,
Small Claims-The Forgotten Courts?, 25 legal Aid Briefcase 167 (1967). These courts are used
more to prosecute claims against the poor than claims by them.
Speaking of the invalidity of the hypothesis that fees serve a useful purpose in discouraging litigation,
Lee Silverstein, director of research and publications, National Legal Aid and Defender Association,
said in his article Waiver of Court Costs and Appointment of Counsel for Poor Persons in Civil
Cases, 2 Valparaiso U.L Rev. at 25-26:
A second practical disadvantage of the proposal [that the court system be completely free to litigants,
as are administrative agencies, schools, libraries, parks, etc.] is that merely eliminating court fees
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and costs would not be enough to make the courts accessible to the poor. Some system is needed to
cover the auxiliary expenses of litigation, such as publication fees, bond premiums, fees of
investigators and expert witnesses, and, in some jurisdictions, court stenographers. More important,
the system must assure that an attorney is provided for the litigant
Further, even if aI/ the financial requisites of litigation are either eliminated or subsidized, many good
claims and defenses will go unasserted, especially by the poor.
This is because the courts typically hold sessions Monday through Friday between 9 and 5 (or
shorter hours) at courthouses in central business districts. The typical workingman or woman must
forego at least half a day's pay to make use of the courts, and possibly more, de pending on such
factors as the type of work he does, how far he must travel, how long he has to wait for his case
Aug. 1969] O'CONNOR v. MATZOORFF
603
to be called, whether the case is continued, whether he has to appear once to file the case and
another time for trial, etc. The literature of small claims courts has long pointed out the need for night
and Saturday seSSions, neighborhood branch courts, and simplified procedure.
An American Bar Foundation study found that a central Illinois county with a population of 200,000
had only a single court handling small claims and that it held sessions only during the usual 9 to 5
hours Monday through Friday. Not surprisingly, the court was used mainly for unlawful detainer
actions, municipal tax claims, and collection of small debts by merchants, hospitals, doctors, and
dentists. Most of the claims went by default The total volume was surprisingly small for a population
of 200,000. Finally, even with an ideal court system, the poor probably need education in how and
when to make use of it. (Footnotes omitted.)
The observations of these writers seem sound in general. Nevertheless, we are not prepared to say
that, in every action brought or appeal pursued by a poor person, his court fees should be
automatically waiVed. If an action or petition is patently frivolous, or brought for purposes of
harassment, the court should not lend its encouragement by waiving its fees. But where a case
appears to have been brought in good faith and to have probable merit, the exercise of a sound
discretion dictates that a litigant should not be denied his day in court simply because he is
financially unable to pay the court fees.
tn the matter presently before the court, we need only determine whether the petition is urged in
good faith and presents an issue of probable substance, and we are convinced that it does. The
motion for leave to proceed in this court in forma pauperis is therefore granted.
Upon the merits the petitioner contends, first, that the justice courts of this state also have inherent
power to waive the statutory fees; and, second, that she has a constitutional right to petition the
courts for redress of wrongs done her and that this right cannot be taken away by the imposition of
fees which she is unable to pay. She also contends that the requirement that she pay the court fees
604 O'CONNOR v. MATZOORFF [76 Wn.2d 589
denies her equal protection of the laws and the guaranty of due process.
[6] We need not consider at this time the constitutional arguments presented, inasmuch as we are of
the opinion that the court below has the power to waive its fees and grant the petitioner the relief
which she seeks. We note in passing, however, that all of the authorities cited in support of the
petitioner's contentions regarding her constitutional rights concern the rights of defendants in criminal
cases; and that there are certain obvious distinctions between a criminal defendant, whose life,
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liberty, or property is placed in jeopardy by the state, and a civil plaintiff, whose claim is waged
against a fellow citizen. However, we need not and do not decide here that such distinction
concludes the question.
Upon the question whether a justice court has the inherent power to waive the statutory fees, neither
party to this proceeding has cited authorities directly in point In the case of Martin v. Superior Court,
176 Cal. 289, 168 P. 135 (1917), cited in the A.L.R. annotation, supra, the California court observed
that the legislature had enacted a law making express provision for the right of a suitor in justice
court to prosecute an action in forma pauperis, while no such provision was made applicable to
courts of record. The court reasoned that the legislature had enacted the provision relating to justice
courts to remove any question of the right to proceed thus in courts not exercising common law
jurisdiction, and that the legislature must have been aware that common law courts had the inherent
power to permit poor persons to proceed in forma pauperis and must therefore have seen no
necessity of expressly recognizing that power.
The justice courts of this state do exercise a portion of the common law jurisdiction. We have
heretofore spoken upon this subject We stated in State ex rei. Brockway v. VVhitehead' 88 Wash.
549,551, 153 P. 349 (1915):
The only differences between courts of record and courts not of record are that the record of the one
speaks
Aug. 19691 O'CONNOR v. MATZDORFF
605
verity until reversed or set aside on appeal, while the other is subject to inquiry in a collateral
proceeding, and a court of record has an inherent power to correct its own records, while a court not
of record has only such powers in this respect as are given by statute.
Justice courts are no less courts because they are not courts of record. They exercise, within their
jurisdiction, the same judicial functions as do courts of record.
We cited this case with approval in State ex rei. McFerran v. Justice Court of Evangeline Starr,
32 Wn.2d 544, 549. 202 P.2d 927 (1949). wherein we said, in discussing powers of a justice of the
peace:
We are of the opinion that it is fundamental that every court has certain inherent powers resulting
from its organization, which are essential to its existence and the due administration of justice.
Holding that a justice of the peace, who was convinced that he could not give the defendant a fair
trial, had the right to transfer a cause to another justice on his own motion, we said, at 550:
Again, it seems to us that a justice court, although not a court of record, has certain inherent powers
essential to the due administration of justice, and that the due administration of justice requires that
these causes be transferred to a justice of the peace where defendant may obtain a fair and speedy
trial. See also RCW 2.28.150, which provides:
When jurisdiction is, by the Constitution of this state or by statute, conferred on a court or judicial
officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the
course of proceeding is not specifically pOinted out by statute, any suitable process or mode of
proceeding may be adopted which may appear most conformable to the spirit of the laws.
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Were this court to hold that the Supreme Court has the power to waive prepayment of costs and that
the superior court has a like power, but that no such power exists in justice courts, an anachronism
would result. This would be tantamount to a holding that, if a poor person has a large
606 O'CONNOR v. MATZDORFF [76 Wn.2d 589
claim, the courts will open their doors to him; but if his claim is small, those doors must be closed,
simply because there were no justice courts at common law. Such a ruling could only be greeted with
justified bewilderment on the part of the already confused and intimidated poor. We think it safe to
surmise that a substantial number of the claims of the poor, if not the majority of them, are
cognizable by justice courts rather than by the superior court; and to deny them access to these
courts of limited jurisdiction, because of their poverty, would be to deny a large part of the justice
which is so sorely needed.
In State ex. rei. Pacific Coast Adjust Co. v. Taggart, 159 Wash. 201, 204, 292 P. 741 (1930), this
court said:
In this state a justice of the peace court is a constitutional court. It is a court regarded as of great
importance to the people at large, as it opens the door of justice near their homes and affords a
cheap and speedy remedy for minor grievances as to the rights of property.
The proper and impartial administration of justice requires that these doors be kept open to the poor
as well as to those who can afford to pay the statutory fees.
We hold that a justice of the peace has the inherent power to waive prepayment of the justice court
fee where justice requires such action. VVhether he should do so or not depends, of course, upon the
showing of poverty made by the applicant and upon whether his claim appears to be brought in good
faith and with probable merit.
As we have concluded earlier in this Opinion, the petitioner has made a sufficient showing that she is
unable to pay the court fees imposed by law; but we are not prepared to pass upon the question
whether the claim she presented in the court below was brought in good faith and is not frivolous.
That is a matter to be determined by the justice of the peace.
[7] The respondent has pointed out that mandamus win not lie to compel the performance of a
discretionary act. However, mandamus wiH lie to direct an officer to exercise
Sept. 1969] MERCER ISLANDv. WALKER
607
a discretion, which it is his duty to exercise. State ex rei Klappsa v. Enumclaw,
73 Wn.2d 451, 439 P.2d 246 (1968). the writ will issue accordingly.
HUNTER, C.J., HILL, FINLEY, HAMILTON, HALE, NEILL, and MCGOVERN, JJ., concur.
DONVVORTH, J. Pro Tem., concurs in the result.
November 5,1969. Petition for rehearing denied.
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Page 77
,43 Wash. 15,85 P. 990 STATEEXREL. ROMANO V. YAKEY (S. Ct.
43 Wash. 15, 85 P. 990 STATE EX REl. ROMANO V. YAKEY (5. Ct.
1906).
THE
STATE OF WASHINGTON, on the Relation of Matteo Romano,
Plaintiff,
vs.
JOHN B. YAKEY, JUDGE, Defendant
No. 6169
SUPREME COURT OF WASHINGTON
43 Wash. 15,85 P. 990
June 26,1906, Decided
Application filed in the supreme court April 7, 1906, for a writ
of mandamus to the Honorable John B. Yakey. judge of the superior
court for Kitsap county, to compel a hearing on an application
for a warrant of arrest in King county.
MANDAMUS -- TO COMPEL MAGISTRATE'S ACTION ON CRIMINAL COMPLAINT
- PARTIES -- INTEREST. Under Bal. Code, 6695. permitting any
person to make complaint to a committing magistrate, a private
citizen making such a complaint has sufficient interest to
prosecute an action of mandamus to compel the magistrate to act.
CRIMINAL LAW - PRELIMINARY COMPLAINT - DUTY OF MAGISTRATE TO
ACT -- PREVIOUS ACTION BY PROSECUTINGAT,ORNEY. A justice of the
peace, sitting as a committing magistrate is, under Bal. Code,
6695, charged with the duty to act upon complaints and determine
whether a crime has been committed. and if so. to issue a
warrant, and he has no power to dismiss a complaint on the ground
that it is the business of the prosecuting attomey to
investigate the matter and determine whether an information shall
be filed.
COURTS - JUDGES - POWERS. The constitution and laws of this
state recognize the distinction between the superior courts and
the judges thereof.
COURTS - MANDAMUS TO VISITING JUDGE. One who applies to a
visiting judge. as such, and not to the superior court, for a
warrant of arrest. cannot, after such visiting judge has
wrongfully refused to act upon the application, and left said
county, obtain a writ of mandate against him. as visiting judge
of such county, compelling him to leave his duties in his own
county and return for the purpose of hearing the application.
MANDAMUS - RETURN - FACTS NOT STATED. Upon an application for a
writ of mandamus. the supreme court cannot consider facts stated
in respondenfs brief that do not appear in the return to the
writ.
MANDAMUS -- WHEN LIES -- REFUSAL OF MAGISTRATE TO ACT. While the
discretion or judgment of a committing magistrate upon a criminal
complaint cannot be controlled, mandamus lies to compel him to
act where he dismisses the proceeding without hearing or
determining the same.
William C. Keith (F. R. Conway, of counsel), for plaintiff.
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,43 Wash. 15,85 P. 990 STATE EXREL. ROMANO V, YAKEY (S. Ct.
Kenneth Mackintosh (George F. Vanderveer, of counsel), for
defendant.
RUDKIN, 1. MOUNT, C.J., FULLERTON, HADLEY, CROW, and ROOT, JJ.,
concur. RUDKIN
{* 16} This is an original application for a writ of mandamus.
The following facts are alleged in support of the petition: that
on the 26th day of October, 1904, the relator was tried in the
superior court of King county for the crime of assault with
intent to murder, was found guilty as charged, and sentenced to
imprisonment in the penitentiary at hard labor for the term of
fourteen years, and that the judgment of conviction has been
affirmed by this court; that the relator was convicted of said
charge solely upon the testimony of Mrs. Sebastian Ucci and
Conchetta Rosetta, who testified on the trial thereof that the
relator had admitted and confessed to them that he shot and cut
Sebastian Ucci, the prosecuting witness named in the information
upon which said conviction was had; that after the affirmance by
this court of the judgment against him, the relator applied to
the prosecuting attorney of King county for a criminal complaint,
charging the said Mrs. Sebastian Ucci and Conchetta Rosetta with
the crime of perjury, and produced before said {*17} prosecuting
attorney witnesses to the number of fifteen, who detailed to said
officer the various conversations had with said Ucci and Rosetta
relative to their testimony given on the trial of the relator on
said charge, in which conversations said Ucci and Rosetta
admitted that they had testified falsely in the matters herein
set forth, and that said prosecuting attorney refused to issue
said complaint, or to permit one to be issued; that thereafter
the relator presented a written complaint, charging said Ucci and
Rosetta with the crime ofpeIjury, to P. V. Davis, one of the
justices of the peace of said King county, and produced before
said justice a large number of witnesses who signified their
willingness to testify that said Ucci and Rosetta had told them
that they had testified falsely on the trial of the relator in
the matters complained of, and that said justice of the peace
refused to issue such warrant, stating that he would not
interfere with the action of the prosecuting attorney in refusing
the same; that thereafter the relator applied to various other
justices of the peace of said county for such warrant of arrest,
and that said several justices refused to issue the same for the
same reason as did the said Justice Davis; that thereafter the
relator applied to the superior court of King county for a writ
of mandamus against the said Davis to compel him to issue said
complaint and warrant, but a demurrer to his application was
sustained by the court upon the ground that said justice had a
right to refuse the same; that thereafter and on the 4th day of
March, 1906, the relator applied "to the honorable John B. Yakey,
sitting as one of the judges of the superior court of the State
of Washington for King county, and in his capacity as a
committing magistrate," for a similar complaint and warrant, and
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by stipulation with the prosecuting attorney, submitted a large
number of affidavits of witnesses theretofore taken in relation
to the admissions and confessions of the said Ucci and Rosetta,
and that said judge refused to issue said warrant, giving as his
reason therefor {* I8} that he was at one time a prosecuting
attorney himself, and that he believed it was the duty of the
prosecuting attorney to make such investigations, and that he,
sitting as a committing magistrate, would not interfere with the
duties or doings of that officer.
The relator further avers that he is innocent of the crime of
which he stands convicted; that he is ready and willing to
produce at the trial of said Ucci and Rosetta, on the charge of
peIjury, a large number of witnesses who will testify to the
admissions and confessions above set forth, and that he has no
plain, speedy or adequate remedy at law. The application for the
writ was made upon notice, and the prosecuting attorney of King
county appeared in opposition thereto. A demurrer was interposed
to the petition on the following grounds: (l) That the relator
herein is not "beneficially interested;" (2) that the petition
does not state facts sufficient to justify the court in granting
the relief prayed for; and (3) that the court is without
jurisdiction to grant the relief prayed for. The writ issued as
prayed, but no further return has been made. The sufficiency of
the petition is, therefore, the only question before us for
consideration.
The first objection is that the relator is not a party
beneficially interested. Of course, the fact that he was
convicted on the testimony of these witnesses gives him no
special interest in this proceeding. There is, no doubt, a
conflict of authority as to whether a private party can be the
relator in an application for a writ of mandamus concerning a
public right or duty. In discussing this question in State ex
reI. ,Piper v. Gracey, 11 Nev. 223, the court said:
"Upon this proposition there is an irreconcilable conflict in the
decisions of the courts of the different states. In Maine,
Massachusetts, Pennsylvania, Michigan, and California, they fully
support the position of respondents, and hold that to entitle a
private citizen to move for and prosecute the writ, he must show
that he has some private or special interest to be subserved, or
some particular right to be pursued or protected, independent of
that which he holds in common with {* I9} the public at large, and
that 'it is for the public officers to apply when public rights
alone are to be subserved.' (Sanger v. County Commissioners of
Kennebeck, 25 Me. 291; HeITner v. Commonwealth, 28 Pa. 108;
Wellington's Petitioners, 16 Pick. 87; People v. Regents of
University, 4 Mich. 98; 45 Cal. 607.) But we think the better and
more reasonable rule is established by the decisions of the
courts of New York, Ohio, Indiana, Dlinois, and Iowa, which hold
the opposite doctrine, and maintain that when the question is one
of public right, and the object of the mandamus to procure the
enforcement of a public duty, the relator is not required to show
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that he has any legal or special interest in the result, it being
sufficient if he shows that he is interested, as a citizelly in
having the laws executed and the right enforced. (people v.
Collins, 19 Wend. 56; People v. Halsey, 37 N.Y. 344; State ex
reI. Huston et al. v. Commissioners of Perry County,S Ohio 497;
The County of Pike v. The State, 11 nt. 202; City of Ottawa v.
The People, 48 Id. 233; Hall ex rei. v. People, 52 Id. 307;
Hamilton v. The State, 3 Ind. 452; State v. County Judge of
Marshall County, 7 Iowa 186.)"
Section 6695, Bal. Code (P.e., 3114), permits any person to
make complaint that a criminal offense has been committed, and if
the magistrate to whom the complaint is made wrongfully refuses
to act in the matter, we think the party applying for the warrant
has a sufficient interest in the performance of the public duty
to compel action by mandamus. This is especially true where it is
made to appear that the prosecuting attorney is resisting the
application.
The second objection is that it does not appear from the petition
that the respondent refused to hear or give proper consideration
to the evidence presented. The duty of every magistrate to whom
complaint is made is plain and specific:
"He shall examine on oath the complainant, and any witness
provided by him, and shall reduce the complaint to writing, and
shall cause the same to be subscribed by the complainant; and if
it shall appear that any offense has been committed of which the
superior court has exclusive jurisdiction, the magistrate shall
issue a warrant reciting the substance {*20} of the accusation,"
etc. Bal. Code, 6695 (p.e., 3114).
It is the duty of every magistrate to see that false charges are
not perf erred against the innocent, and that criminal process is
not resorted to, to sub serve personal or private ends, but it is
equally his duty to see that the guilty are brought to judgment.
He may consult and advise with the prosecuting attorney, and it
is proper that he should do so, especially where questions of law
are involved, but, in the end, he must determine for himself
whether an offense has been committed of which the superior court
has exclusive jurisdiction, and, if he so finds, he must issue
his warrant, whether the prosecuting attorney assents or
dissents.
The magistrates of the state are conservators of the peace, in
fact as well as in name, and, in the discharge of their duties,
they are under the direction and supervision of no other officer.
Their orders may be reviewed on habeas corpus, [Bal. Code, 5827
(P.C. 1377)], or upon the statement filed by the prosecuting
attorney containing his reasons in fact or in law for not filing
an information, [Bal. Code, 6835 (p.e. 2082)], but not
otherwise. In this state where grand juries are the exception and
not the rule, it is of the highest importance that every charge
of violation of the criminal laws of the state should be
carefully, conscientiously, and fearlessly investigated by the
officers charged with that duty, and the theory that the
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43 Wash. 15,85 P. 990 STATE EXREL. ROMANOV. YAKEY (S. Ct.
prosecuting attorneys of the several counties must determine
first and finally who shall be prosecuted, and who shall not,
finds no support in the law. In the light of what we have said,
did the magistrate to whom the application in question was made
perform or attempt to perform the duties enjoined upon him by
law? Manifestly he did not. He simply determined that it was the
duty of the prosecuting attorney to make the investigation, and
that he would not interfere with the duties or doings of that
officer. The respondent's brief states that he took the matter
under advisement {*21} and determined the application on its
merits, and in disposing of the question, said many things and
gave many reasons which do not appear in the application before
us. These facts, if true, should appear in the return to the writ
and not in argument. This court must accept the record as it
finds it, and all defenses to the application must be interposed
at the same time.
The sixth objection is that this court cannot control the
exercise of discretion through a writ of mandamus. This is no
doubt true. Whether a warrant should issue or not is a question
this court will not determine, nor can we control the judgment or
discretion of the officer to whom the application was made. But
we can and will compel official action in a proper case, and if
there were no other obstacle in the way, we would unhesitatingly
issue the writ commanding the magistrate to hear and determine
the application presented to him on the merits, instead of
casting the burden on other shoulders.
The third, fourth, and fifth objections may be considered
together. They are, (3) that this court has no original
jurisdiction to issue writs of mandamus to administrative
officers, unless they are state officers; (4) that the respondent
as a visiting judge had no authority to issue criminal complaints
or warrants in King county; and (5) that if he had such
authority, having ceased to be a visitingjudge, his authority
has likewise ceased. In determining this question we must first
determine to whom the application for the warrant was made, as
the petition avers that it was made to the respondent, while
presiding in the superior court of King county, in his capacity
as committing magistrate. The application might doubtless have
been made direct to the superior court of King county, for every
court of criminal jurisdiction is a conservator of the peace. As
said by Chief Justice Marshall, in United States v. Burr, Fed.
Cas. No. 14,692b,
"It is believed to be a correct position, that the power to
commit for offenses of which it has cognizance is exercised by
every court of criminal jurisdiction, and that courts as {* 22}
well as individual magistrates, are conservators of the peace.
Were it otherwise, the consequence would only be that it would
become the duty of the judge to descend from the bench, and, in
his character as an individual magistrate, to do that which the
court is asked to do. If the court possesses the power, it is
certainly its duty to hear the motion which has been made on the
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part of the United States; for, in cases of the character of that
under consideration, its duty and its power are co-extensive with
each other."
See, also, In re Smith, 4 Colo. 532.
In jurisdictions where there are fixed terms of court, and where
the courts are powerless to act out of term time, it is necessary
to maintain the distinction between the powers of the court and
the powers of the judge; but with us, where the superior courts
are always in session, there seems to be no good reason for any
such distinction. It would perhaps avoid confusion if every
judicial act of a superior judge were declared to be the act of
the court itself. But however this may be, the distinction is
clearly recognized in the constitution and laws of this state,
and this court is not at liberty to disregard it. Thus, section 6
of art. 4 of the constitution declares that the superior courts
and their judges shall have authority to issue certain writs; and
section 23 of the same article provides that court commissioners
shall have the same authority as judges of superior courts at
chambers. Section 5 of the act of February 26, 1891 (Laws 1891,
p. 91), provides that a judge may exercise out of court all the
powers expressly conferred upon a judge as contradistinguished
from a court and not otherwise. Bal. Code, 6500, allows appeals
from certain determinations by the superior court or a judge
thereof, and numerous other instances might be cited. Section
6695, supra, under which the application for the warrant in this
case was made, provides that complaint may be made to a justice
of the peace or judge of the superior court. Had this application
been made to the superior court of King county we would find no
obstacle in the way of running a writ against that court, but we
are constrained to hold that {*23} the relator elected to apply
to the respondent as judge and not to the court, and that if a
writ should issue, it must issue against the respondent as judge,
and not against the superior court of King county.
The power of a superior judge to act as a mere magistrate outside
the county for which he is elected may be doubted, and there is a
still graver doubt as to his duty to do so. The original
jurisdiction of this court to issue a writ of mandamus against a
magistrate, even though that magistrate should be a judge of the
superior court, may also be questioned, but these questions we do
not determine. We are satisfied that a writ which would require
the respondent to leave his duties in Kitsap county and repair to
another county, for the sole purpose of hearing an application
for a warrant of arrest in that county, should not issue out of
this court, as long as there are in the latter county numerous
officers upon whom that duty is enjoined by law.
For this reason the application is denied.
DISPOSITION
Denied.
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Supreme Court
COOPER v. AARON, 358 u.s. 1 (1958)
3S8 u.s .
COOPERET AL, MEMBERS OF THE BOARD OF DlREcroRSOFTHE UrrLE ROCK.
ARKANSAS, INDEPENDENT SCHOOL DISI1UCT, ET AL v.AARON ET AL
CERTIORARI TO THE UNITED Sl'ATESCOUKT OF APPEALS FOR THE EIGHTH
CIRClJIT.Fn NO.1.
Argued September u, 1958.
Deeided September 12, 1958-
Opinion announced September 29, 1958.
Fn [:158 li.5. 1. I} NOTE: The per curiam opinion announced on September 12, 1958, and printed in a
footnote, post, p. 5, applies not only 10 this ease but also 10 No.1, Misc., August Speeial Term, 1958, Aaron
et aL v. Cooperet al., on application lOr v_lion of orderofthe United States Court of Appeals for the
Eighth Circuit slaying issUllllCe of ils mandate, for slay of order of the United Slates District Court for the
Eastern District of Arkansas, and for sucll other orders as petitioners may be entitled to, srgued August
28,1958.
U neler a plan of gradual desegregation of tbe.....,.". in the pnblie schools of Little Rock, Arkansas, adopted
by petitioners and approved by the courts bebw, respondents, Negro childreo, were ordered admitted to a
previously all-white high school at the beginning of the 1957-1958 school year. Due to actions by the
Legislature and Governor of tbe State opposing desegregation, and 10 threats of mob violence resulting
therefrom, respondents were unable to attend tbe school until troops were sent and maintained there by
tIt.. Federal Goyernment for their protection: but tll<-y b:;i> i. ;$, 1,:lj altendPd til<- "".hool for the
remaiader of that school year. Finding that these events bad resulted in tensions, bedlam. chaos and
turmoil in the school, which disrupted the educational process, the District Court, in J nne 1958, granted
petitioners' request that operation of their plan of desegregation be suspended for two and one-halfyears,
and that respondents be sent haek to segregated schools. The Court of Appeals reversed Held: Til<-
judgment of the Court of Appeals is affirmed, and the orders of the District Court enforcing petitioners'
plan of desegregation are reinstated, effective immediately. pp. 4-20.
1. This Court cannot countenance a claim by the Governor and Legislature of a Stale that there is no duty
on state officials to obey federal court orders resting on this Court's considered interpretation of the
tTnitedSbttf"sConstitution in Brown v. Board of Education. :l.r (:5 P.-t.
2. This Court rejects tbe contention that it should uphold a suspension of the Little Roek School Board's
pian to do away with segrepted publie sdtooIs in UttIe RfJ<'k until state laws and efforts to upset and
nullify its holding in the Brown ease have been further cballenged and tested in the courts. P. 4.
3- In many loeations, obedience to the duty of desegregation wiD reqnire the intmediate general admission
of Negro children, otherwise qualified as students for their appropriate classes, at particular sehools. P. 7.
4. If, after analysis of the relevant factors (which, of course, exclades hostility to racial desegreplion), a
District Court concludes that justificalio:l exists for not reqniring the present nonsegregated admission of
all qualified Negro children to publie schools, it should scrutini2e the program of the school authorities to
make sure that they have developed arrangements pointed toward the earliest practicable completion of
desegregation, and have taken appropriate steps to put their program into effective operation. P. 7.
5. The petitioners stand in this litigation as tbe agents of the State, and they cannot assert tbeir good faith
as an excllSe for delay in implementing the respondents' constitutional rights, when vindication of those
rights has been rendered diffieult or impossible by the aetions of other state officials. Pp. 15-16.
6. The constitutioual rights of respoadents are not to be sacrificed or yielded to the violence and disonler
whieh han- followed b;,8 1'.8. 1, 31 upon the actions of the Governor and Lezjslature, and law and onler
are not bere to be preserved by depririDg the Nqro ehildren of their COIIIIIitutioaal righIa. P. 16.
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7. The constitutional rights of ehildren not to be discriminated against in school admission on grounds of
race or color declared by this Court in the Brown ease ean neither be nullified openly and directly by state
legislators or state executives or judicial offieers, nor nullified indiredIy by them through evasive schemes
for segregation wbether attempted "ingeniously or ingenuously. "Pp.16-17.
8.. The interpretation of the Fonrreenth Amendment enunciated by tbis Court in the Brown case is the
supreme '-of the Jand, and Art. VI of the Constitntion males itofbindingeffect on the States "anyThing
in the Constitution ot Laws of any Slate to the Contrary notwithstanding.." P. 18.
9. No state legisJator or executive or judicial offirer ean war agIIinst the Constitution without violating bis
solemn oath to support it. P. 18.
10. Slate support of segregated sehools through any arrangement, management, funds or property cannot
be squared with the command of the Fonrt-ut Amendment that no Slate shall deny to any person within
ilsjnrisdietion the equal protection of the laws. P. 19.
257 F.2.d 33, affirmed.
Richard C. Butler argued the cause for petitioners. With hint on the briefwereA. F. House and, by special
leave ofCourt,Jobn H. Haley, pro baevire.
Thurgood Marshall argued the cause for respondents. With hint on the brief were Wiley A. Branton.
William Coleman, Jr., Jack Greenberg and Louis H. Pollak.
Solicitor General Rankin, at the invitation of the Court, post, p. 27, argued the cause for the United States,
as amicus curiae, urging that the relief sought by respondenls should be granted. With hint on the brief
... H. Dans, Philip Elman and RalphS. Sprit<er. 1:\:;$ '.:':.1. {)
Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BlACK, MR. JUSTICE FRANKFURTER,
MR. JUSTICE DOUGlAS, MR. JUSTICE BURTON, MR. JUSTICE ClARK, MR. JUSTICE HARLAN, MR.
JUSTICE BRENNAN, and MR. JUSTICE WHrITAKER.
As this case reaches us it raises questions of the highest inlportanee to the maintenance of our federal
system of government. It necessarily involves a elain1 by the Governor and Legislature of a State that there
is no duty on _e officials to obey federal court orders resting on this Court's considered intel]>retation of
the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas
upon tire p...,mist- that art" not bound by our holding in Brown y. Board of Eciueation. F.s. 41\3 .
That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar
children on racial grounds from attending schools where tlrere is state participation through any
arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock
School Board's pIan to do awBY with segregated publie schools in Little Rock until state laws and efforts to
upset and nnJIify our hoJding in Brown v. Board of Ed....ation have been further challenged and tested in
the worts. We reject these contentions.
The ease was argued before us on Scptember 11, 1958. On the following day we nnaninlously affirmed the
judgment of the Court of Appeals for the Eighth Circuit, 257 F.2d 33, which had reversed a judgment of
the District Court for tire Eastern Distriet of Arkansas. 163 F. Snpp. 13. The Distriet Court had granted the
applieation of the petitioners, the Little Rock SehooI Board and School Superintendent, to suspend for two
and one-half years the operation of the School Board's oourt-approved desegregation program. In order
that the Sehool Boord [;:;;;l:l U.S. 1. 5j might know. without doubt. its duty in this regard Iwfon' tho>
opening of school, whieh bad been set for the following Mondsy, September 15, 1958, we intmediately
issuM the judgment, rt'S<'",ing the .-xp..."..ion of our supporting yiews to .. later "'lte. ' This Ol)inion of all
of the memhers of the Court embodies those views.
The following are the facts and cirewnslsnces so far as neeessmy to shaw haw the legal questions are
presented.
On May 17, 1954. this Court decided that enforced raciaI segregation in the public sehooIs of a State is a
denial of the eqnalprotectionofthe laws e.voined by the FonrreenthAmendment. Brown v. Board of
Education, t;;-;8 U.S. 1. {i! :.'4'7 l'.5. 41:1,:;. The {'ourt postponed, pending further arguDlf"nt, formulution of
a decree to effectuate this decision. Thai decree was rendered May 31,1955. Brown v. Board of Education,
:'49 U.s. 2.; .. In tire formldation of that ,lee ..... the ('ourt rerognizt-d Ih,d good faith oomplianee with the
principles declared in Brown might in some situations "eall for elim:ination of a variety of obstacles in
making the transition to school systems operated in aecordaDoe with the constitutional principles set forth
in our May 17, 1954, decision." Id., at 300. The Court went on to state:
"Courts of equity may properly take into attOUIll the publie interest in the elimination of such obstacles in
a systematie and effective manner. But it sbould go without saying that the vitality of these eonstitotional
principles cannot be allowed to yield sintply because of disagreement with tbem.
"While giving weight tu these publie and priwte oonsideratioDs, the courts will require that the defendants
make a prompt and reasooable start toward full oompl.iance with our May 17, 1954, ruJin&.. 0Me soth a
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start bas been made, the courts may lind that additional time is neceosmy to carry out the ruling in an
effective manner. The borden rests upon the defendants to establish IbalIIOIeh time is necessary in the
public interest and is consistent with good faith oomplianre at the earliest praclieable date. To that eod,
the courts may consider problems related to administration, arising from the physical condition of the
school plant, the school transportation system, personnel, revision of school districts and attendanee areas
into compact units to achieve a system of determining admission to the public schools on a nonracial
basis, and revision oflocal Jaws and regulations wbkh may he necessary in solving the foregoing
problems." t:s." at -30L 1"3:).8 1, 71
Under such circumstances, the District Courts _re directed to ""loire "a prompt and reasonable start
toward fuR compliance," and to take such action as was neceosmy to bring about the end of racial
SCgreglltion in the public schools "with all deliberale speed." Ibid. Of COUl'SC, in many Ioeations, obedience
to the duly of desegregIltion would require the immediate general admission of Negro children, otherwise
qualified as students for their approprinte classes, at parlicular sebooJs. On the other hand, a District
Court, after analysis of the relevant factors (whieh, of course, excludes hostility to racial desegreglltion),
might conclnde that justification existed fur _ requiringthe present DODBegJeped admission of all
qualified NegJo clilldren. In such cireJllnst ............ however, the courts shouldscl'Utinize the program of the
scllool authorities to make sure that they haddevcloped ammgements pointed toward the earliest
piaeticable completion of desegJegation, and had taken appropriate steps to put their program into
effective operation. It was made plain that delay in any guise in order to deny the eonstitutional rights of
Negro children could not be rountenaneed, and that only a prompt start, diligently and earnestly pursued,
to eliminate racial scgreglltion from the public schools could constitute good faith compliance. Slute
authorities were thus duly bound to devote every eftOrt toward initiating desegregIltion and bringing about
the elimination of racial diseriminstion in the public school system.
On May 20, 1954. three dsys after the first Brown opinion, the Little Rock District School Board adopted,
and on May 23, 1954, made public, a statement of policy entitled "Supreme Court Decision - Segregation
in Public Scbools." In this statement the Board recognized that
"It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when
the Supreme Court ofthe United Slates outlines the method to be followed.' bc;8 r S_ L 8J
Thereafter the Board undertook studies of the administrative problems confronting the transition to a
desegJegated public school system at Little Roelr:. It instmcted the Superintendent of Schools to prepare a
plan fur desegregation, and approved such" plan on May 24, 1955, seven dsys befure the secood Brown
opinion. The plan provided fur desegJegation at the senior high scboollevel (grades 10 through 12) as the
first stage. Desegregation at the junior high and elementary levels was to fullow. It was contemplated that
desegJegation at the high school level would commence in the fall of 1957, and the expeclution was that
complete desegregIltion of the school system would be accomplished by 1<)63. Following the adoption of
this plan, the Superintendent of Schools diseussed it with a large number of citizen groups in the city. As a
result of these discussions, the Board reached the conclusion that a large majority of the residents" of
Little Rock were of "the belief .. that the Plan, although objectionable in principle," from the point of
view of those supporting segregated schools, "was still the best fur the interests of all pupils in the
District."
Upon challenge by a gl'Oup of Negro plaintiffs desiring more rapid completion of the desegregation
process, the District Court upheld the School Board's plan, Aaron v. Cooper, 143 F. Supp. 855. The Court
of Appeals affirmed. 243 F.2d 361. Review of that judgment was _ sought here.
While the School Board was thus going forward with its preparation for desegJegating the Little Rock
school system, other state authorities, in contrast, were actively pursuing a program designed to
perpetuate in Arlr:ansas the system of racial8egreglltion wbkh this Court had held violated the Fourteenth
Amendment. First came, in November 1956, an amendment to the Slute Constitution lIatly commanding
the Arkansas General Assembly to oppose "in every Constitutional manner the Un-eonstitutionaJ 1:$,,1<
l.S. 1. ')1 dt'Sl"gregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court,
Ark. Const., Amend. 44. and, through the initiative, a pupil 8IIIIignment law, Arlr:. Slat. 80-1519 to 80-1524
Pursuant to this state constitutional eommaod, a law relieving school children from compulsory
attendsnce at racially mixed schools, Arlr:. Stat. 80-1525. and a law establishing a State Sovereignty
Commission, Arlr:. Stat. 6-801 to 6-824, were ellllCted by the General Assembly in February 1957.
The School Board and the Superintendent of Schools nevertheless continued with preparations to carry
out the first stage of the dcscgreglltion program. N"me Negro children were scheduled for admission in
September 1957 to Central High School, which has more than two thousdnd students. Various
administrative measures, designed to assure the smooth transition of this first stage of desegregation,
were undertalren.
On September 2, 1957, the dsy before these NegJo students were to enter Central High, the school
authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched
units oftbe Arkansas National Guard to the Central High SebooI grounds and placed the school "off
limits" to colored students. As fuund by the District Court in subsequent proceedings, the Go"""""""
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action bad not been requested by the school authorities, and was entirely nnheralded. The findings were
these:
"Up to this time [Septemher 2), no crowds bad gathered about Cenlral High School and no acts of violence
or threats of violence in connection with the clll"J'Ying out of the plan had occurred. Nevertheless, out of an
abundance of cantion, the school authorities bad frequently oonferred with the Mayor and Chief of Police
of Little Rod, about taking appropriat .. U:>" U.S, L 10 I steps by the Little Rock pone .. to pwvent .my
possible disturbances or acts of violence in connection with the attendance of the 9 colored students at
Cenlral High SchooL The Mayor considered that the Little Rock police force could adequately cope with
any incidents which might arise at the opening of school The Mayor, the Chief of Police, and the school
no request to the Governor or any representatiwe ofms for State assistance in
mainldining peace and order at Cenlral High School Neither the Governor nor any other official of the
State government consulted with the Little Rock authorities about whether the Little Rock police were
prepered to cope with any incidents which might arise at the school, about any need for State assistance in
maintaining peace and order. or about stationing the Arkansas National Guard at Cenlral High School."
Aaron v. Cooper, 156 F. Snpp. 220, 225-
The Boord's petition for postponement in this proceeding states: "The eflilct of that action [of the
Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore hsd
reluctsntly accepted the Plan to helieve there was some power in the State of Arkansas which, when
exerted, could nullify the Federal law and permit dis<lbedienee of the deeree of this (District] Court, and
from thst date hostility to the Plan was increased and critieism of the officials of the [School] District has
become more bitter and unrestrained. The Governor's action caused the School Board to request the
Negro students on Scptemher 2 not to attend the high school "until the legal dilemma was solved. The
next day, September 3,1957. the Board petitioned the District Court for instructions, and the court, after a
hearing. found that the Board's Lv,S ES. 1, 111 request of the Negro students tostllY away from the high
school had been made because of the stationing of the militmy guards by the state authorities. The court
determined that this was not a reason for departing from the approved plan, and ordered the Sehool
Board and Superintendent to proceed with it.
On the morning of the next day, September 4. 1957. the Negro children attempted to enter the high school
but, as the District Court later found. units of the Arkansas National Guard "acting pursuant to the
Governor's order. stood shoulder to shoulder aI the school grounds and thereby forcibly prevented the 9
Negro students .. from entering," as they continued to do every sebool day during the following three
weeks. 156 F. Supp., at 225.
That same day. Septemher 4, 1957, the United States Attorney fOr the Eastern District of Arkansas was
requested by the District Court to begin an immediate investigation in order to fix responsibility for the
interference with the orderly implementation of the District Court's direction to carry out the
desegregation program.. Three days later, September 7, the District Court denied a petition of the School
Board and the Superintendent of Schools for an order tempomrily suspending continuance of the
program.
Upon completion of the United States Attorney's investigation, he and the Attorney General of the United
Stales, at the District Court's request, entered the proceeding/! and filed a petition on behalf of the United
States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard
from further attempts to prevent obedienre to the court's order. After hearing/; on the petition. the District
Court found that the School Boord's plan bad been obstructed by the Governor through the use of
National Guard troops, and granl<'<i a preliminary injunction on &>I,temb..r ! ;;0-;":; F.S, 1, 121 20. 19';:'.
enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at
('",nlral Hish School, and from otherwise or interfering with the orders of the oourt in
connection with the plan. 156 F. Supp. 220, affirmed, Faubus v. United States, 254 F.2d 797. The National
Guard was then withdrawn from the school
The next school day was Monday. September 23, 1957. The Negro chiklren entered the high sebool that
moraing under the protection of the Little Rock Poliee Department and members of the Arkansas State
Police. But the officers caused the children to be removed from the school during the morning because
they had difficulty controlling a large and demonstrating crowd which bad gathered at the high school. 163
F. Supp" at 16. On September 25. however. the President of the United States dispatehed federal troops to
Cenlral High School and admission of the Negro students to the school was thereby effected. Regular army
troops continued at the high school until November 27, 1957. They were then replaced by fedemlized
National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students
remained in attendance at the school throughout the school year.
We come now to the aspect of the proceeding/! presently before us. On February 20, 1958, the School
Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of
their program for desegregation. Their position in essence was that because of extreme public hostility,
which they stated had been engendered largely by the official attitndes and actions of the Governor and
the Legislature. the maintenance of a sound educational PJOSllUD at Central High School, with the Nepo
students in attendance, would be impossi)le. The Board therefOre propoIIed that the Ne&ro students
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admitted to the ""hooI be withdrawn r 358 l' .S, and .... nt to ""l7"gatffi schools. and that all
further steps to carry out the Board's desegregation program he postponed fOr a period tater by
the Board to be two and one-half years.
After a bearing the District Court granted the relief requested by the Board. Among other th.inss the conrI
found thut the past year at Central High School had been _nded by conditions of "chaos, bedlam and
tunpoil"; that there were "repeated incidents of more or less serious violence directed agsinsl the Negro
stndents and their property"; that there was "tension and unrest among the school administrators, the
class-room teachers, the pupils, and the tatters' parents, which inevitably had an adverse effect upon the
educational program"; that a school official was threatened with violence; that a "serious financial burden"
had been cast on the School District; that the education of the students had suffered "and under existing
conditions will continue to suffer"; that the Board would continue 10 need "military assistance or its
equivalent"; that the JocaI polire department would not he able "to detsil enough men to afford the
necessary protection"; and that the situation was "intolemble." 163 F. Supp., at 20-26.
The District Coort'sju<Wnentwas datedJnne 20, 1958. The Negro respondents appealed to the Court of
Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. At the sante
time they fiJed a petition for certiorari in this Court asking us to review the District Court's ju<lgment
without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court
for II stllY. TIlat we (lPdint'd to do. :15':" I: S. :;66 The Court of Appeals did not act on the petition lOr a stay,
but, on August 18,1958, after convening in special session on August 4 and hearing the appeal, reversed
the District Court. 2.)':' F.2d 33. On August 21. 19:;8. th<- ('<lurt of App<-als stayt'd its mandate bJtl LS, 1
LI J to permit the School Board to petition this Court for certiorari. Pending the filing ofthe School
Board's petition fOr certiorari, the Negro respondents, on August 23, 1958, applied to MR. JUSTICE
WHmAKER, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeal'!
withholding its own mandate and also to stay the District Court's judgment. In view of the nature of the
motions, he referred them to the entire Conrt. Recognizing the vital importance of a decision of the issues
in time to permit arrangements to be made for the 1958-19,)<) school y .. ar, """ Aaron Y. ('oop .. r, F:i
5tlh, y, - , we ronwnt'd in Sl'""inl T .. rm on Augrnt 28. 1958, and h<-ard oral argument on th<" l'<'SpOndents'
motions, and also argument of the Solicitor General who, by invitation, appeared for the United Stales as
anticus curiae, and asserted that the Court of Appeals' ju<lgment was clearly correct on the merits, and
urged that we vacate its stay forthwith. Fmding that respondents' application necessarily involved
considerution of the merits of the litigation, we entered an order which deferred decision upon the
motions pending the disposition of the School Board's petition for certiorari, and fixed Scptemher 8, 1958,
as the day on or hefore which such petition might be filed, and September 11, 1<)58, lOr oral argument
upon the petition. TIre petition for certiorari, duly fiJed, was granted in open Court on September 11. 1958,
post, p. 29, and further arguments were had, the Solicitor General again urging the correctness of the
ju<lgment of the Court of Appeals. On Scptember 12, 1<)58, as already mentioned, we unanimously
affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the
outset of this opinion, ante, p. 5-
In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted
without reservation the position of the Sehool Board. th<- h7! FS. 1, 151 S."",rintt"udent of Sehools md
their counsel that they displayed eutire good faith in the conduet of these and in deali:ng with
th<- unfortunate and distressing sequence of events which has been ontIined. We likewise have accepted
the findings of the District Court "" to the conditions at Central High School during the 1957-1958 school
year, and also the findings thut the educational progress of all the students, white and colored, of that
school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to
continue.
The significance of these findinl;', however, is to be considered in light of the fact, indisputably revealed hy
the record before us, that the conditions they depict are directly trareable to the actions of legislators and
executive officials of the State of ArkImsas, tsken in their official capacities, which refled their own
deterotination to resist this Court's decision in the Brown case and which have brought about violent
resistance to that decision in Arkansas. In its petition for rertiorari fiJed in this Court, the School Board
itself describes the situation in this language: '"l1le legislative, executive, and judieial departments of the
state government opposed the desegregation of Little Rod schools by enacting Jaws, calling out troops,
making statements viIIifying federal Jaw and federal eourts, and failing to utilize state Jaw enfon:ement
agencies and judicial processes to maintain public peace.'
One may wen sympathize with the position of the Board in the fare of the frustrating conditions which
have confronted it, but, regardless of the Board's good faith, the ""tions of the other state agencies
responsillle for those conditions compel us to reject the Board's \eg/lI position. Had Central High School
been under the direct lWlWlgement of the Sf ... t .. ilst'lf, it eould IX' suggestt'd l:"c;8 LS. !. it,] that
those immediuteIy ill eharge of tile school should he heard to _ their own good faith as a legal e""use
for delay in implementing the oonstitutiooal. rights of these respondents, when vindication of those rights
was rendered difficult or impossible by the ""tions of other _ officials. here is in no
different postnre because the members of the Sehool Board and the Superintendent ofSehooJsare b:aI
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oiIiriaIs; from the point of view of the FourreenthAmendment. they sIand in this Jitiption ... the agents of
the State.
The constitutional rights of respondents are not to be sacrifittd or yielded to the violence and disorder
which have followed upon the actions of the Go'remor and Legislature. As this Court said some 41 years
ago in a unanimous opinion in a ease involring another aspeel of racial segresation: "It is urged that this
proposed segregation will promote tbe public: peace by p""",nting race conHicts. Desirable as this is, and
important as is the preservation of the public peare, this aim cannot be aeromplished by laws or
ordinan<'es whkh dt>ny rights creat.-d or prot"d.-d by tbe F..dt-m1 Constitotion." Buchanan v. W arlt .
1 '.S. 60. Ill. Thus lawandoro..rare not b ..... to .... p....."...-dbydt>privingthe Nt-groebildrenofthclr
constil1llioDal rights. The record before us clearly establishes that the growth of the Boanfs difficulties to a
magnitude beyond its unaided power to control is the product of state action. 1bose difficulties, as counsel
for the Board forthrightly conceded on the oral argument in this Court, can also be brought tmder control
by state action.
The controlling legal prineiples are plain. Therommand of the Fourteenth Amendment is that no "State"
sball deny to any person within its jurisdiction the equal proteetion of the laws. "A State acts by its
legislali\'e, its exl'Cutiv", or its judicial anthorities. It .. an ad in no !:358 F8. L 171 othl'f way. The
oonstitutioDal provision, therefore, m_ mean that no "&"JlCY of the State, or of the officers or ..,mts by
whom its powers are exerted, shall deny to any person within its jurisdiction the equal proleetion of the
laws. Whoever, by virtue of pub"" position under 8. State pemmenl, . denies or takes IlWBJ' the equal
protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State,
and is clothed with the State's power, his a.ct is that of the State. This must be so, or the constitutional
I,rohibition has no IIle3Ding. E.,< parte Virginia. In!) l' $. ">1'}. :::r . Thus the prohibitions of tbe
Fourteenth Amendment extend to aD action of the State denying equal protection of the Jaws; whatever
th .. ag .. n,, of the St,lt .. taking tbe action.,;.,., Virginiav. Rives, 10 ... F.s. 3-1;'1: Pt'nm.'.dvani:tY.lloardof
Directors of City Trusts ofPhiladelphi.n. 3;;.3 p,s. 2.:)0 ; Shdley ... Yl4 {' .5. l; or the
g-.. ill ",,*hit i&tabm, see DeningDl v. Plummer, 24D F.2d 922; Department of Conservation and
De..........,... v. Tate, 231 F.2d 615. In short, Ihe eoasIit 'ri8htsof children not tobellilleriminated
againKir ... .,booladmissionon groundsofmreorcolor declaredby this Court in the Browncase can
neiU-houoBIlified openly aDd direclIy by state legislators or state exeeum.. orjudioial aIiIieers, nor
nullified indirectly by them through evasive schemes for segregation-.,ther attempted "ingenioosly or
ingt'n_Iy." Smith v. T"xas. 311 U.s. 121<. 132.
What bas been said, in the tight ofthe facts is enough to dispose of the case. Howe'rer, we
should answer tbe premise of the actions of the Governor and Legislature that they are not bound by our
holding in the Brown case. It is neeessary only to reeall some basic constitutional propositions which are
settled doctrine. {35M 1: 181
Article VI of the Constitution makes the Constitotion the "supreme lAw of the Land.' In 1803, Chief
Jnstice Marsball, speaking for a unanimous Court, referring to the Constitntion as "the fundamental and
paramount law of the nation; declared in the notable """"of:M.bmyv. Madison. 1 Cnmcll137, rn, that
of what the law is." This decision
IC pnncip e that the federal judieiruy is supreme in the exposition of the law of the
Constitotion, and that principle bas ever sinre been respected by this Court and the Country as a
permanent and indispensable feature of our constitutional system. It follows that tbe interpretation of the
Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and
Art. VI of the Constitution makes it ofbinding effect on the States "any Thing in the Constitution or Laws
of any State to the Contrary notwitbstsnding. " Every state legislator and executive and judicial officer is
solemnly committed by oath taken pursuant to Art. VI, el. 3, "to support this Constitution. Chief Justice
Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety
to preserve it [the Constitution] in fullforre,in all its powers, and toguardapinst resistanee toorevasion
of its authority, on the part of a State " Ableman v. Booth, 21 How. 506, 524.
No state legislator or executive can war the Constitution without violating his
m.king 10 support it. Chief Justice MarshaB spoke lOr a nnanimous Court m the
JeglSlatores of the several states may, at will, annul the judgments of the courts of the United States, and
destroy the rights acquired under tbosejudgments, itselfbeeomes .. solemn mocl<ery . "
United States Y. P"ters.;) Craneh 11;;'136 . .-\ C",,-ernorwho .lSSerts a [c,,;8 F.R. 1. F)l pow .. r to nullify a
federal court order is similarly restrained. If be had such power, said ChiefJustire Hughes, in 1932, also
for a unanimous Court, "it is manifesl thai the fiat of 8 stale Governor, and not the Constitotion of the
United States, would be the supreme Isw of the land; that the restrictions of the Federal Constitution npon
the exercise ofstate power wonld be but impotent phrases .... " Sterling v. Constantin, 2SC- l'.s. :178. ,,'F -
398.
It is, of course, qnite true that the responsibility for publie edueation is primarily the concern of the State..,
but it is equally true that such responsibilities, like aD other state aetirity, must be exereised mnsisIentJy
with federal oonstitntional requirements as they apply to state aetion. The Constitution cmated 8.
government dOC'::ated to equaljustiee nnder law. The Fourteenth Amendment embodied and emphasized
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that ideaL State support of segregared schools through any arrangement, """"'II"ment, funds. 01' property
cannot be squared with the Amendment's command that DOSia'" shall deny to any pel'SOn within its
jurisdiction the equaiprotection of the laws. The right <1 a student not to be 0Il1'll!eial
in schools so maintained is indeed so fundamental and pervasive that it is embnoeed in the roneept of due
process on",. Bolling Y. Sharpe, ;,4' LS. -!9""' 'I1w- basic drt-ision in Brown was tm,mimomly reochf'd by
this Court only after the """" had been briefed and twice argued and the issues bad been given the most
serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are
at one with the Justices still OIl the Court who participated in that basic decision as to its correctness, and
that decision is now lIIIlIDimonsJy reaffirmed. The princip1es anllOllJl('.e(} in that decision and the
obedience of the Slates 10 them, to the rommandof the Constitntion. 13:';B ES. 1. 2f) J art'
indispensable for the protection of the freedoms guaranteed by our fundamental charter for aD of us. Our
constitutional ideal of equal justice nnder law is thus made a living truth.
[ f'ootno te' ] The following was the tQurt's per curimn opinion:
"PER CURIAM.
"The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by
the arguments presented on September 11, 1958. and aD the briefs on file, is unanimously of the opinion
that the judgment of the Court of Appeals for the Eip,bth Circuit of August 18, 1958, 257 F.2d 33, must be
affirmed. In view of the imminent commencement of the new school year at the Central High Sebool of
Little Rock, Arkansas, we deem it important to make prompt announcement of ourjudgment affirming
the Court of Appeals. The expression of the views supporting our judgment will be prepared and
announced in doe course.
"It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August
18, 1958,257 F.2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas,
dated June 20, 1958, 163 F. SupP.13, be affirmed. and that thejudgmentsofthe DistrietCourt for the
Eastern District of Arkansas, dated August 28, 1956, see 143 F. Supp. 855. and September 3, 1957,
enforeing the School Board's plan for in compliance with the decision of this Court in
Brown v. Board of Edneation. 3r FS. 411:,. :tN U.s. 294, be reinstated. It follows tlwt the ordt-r ofthe
Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.
"The judgment of this Court shaD be effective immediately. and shall be commt1llkated forthwith to the
Distriet Court for the Eastern District of
Conemriug opinion of MR. JUSTICE FR.lliKFURTER.'
While unreservedly participating with my brethren in ourjoint opinion, I deem it appropriate also to deal
individnaIIy with the great issue here at stake.
By working together, by sharing in a common effort, men of different minds and tempers, even if they do
not reach agreement, aequire understanding and thereby toleraoee of their differenees. This process was
under way in Little Roek. The detailed plan formulated by the Little Rock School Board, in the light of
local circumstanees, had been approved by the United States District Court in Arkansas as satisfying the
rt'<juir<'ments ofthis Court's dt-cr..., in Brown v. Board of Edne<ltion, cHG L .S. 29-1 . Th .. LitlI" Rock S"hool
Board had embarked on an edueatiouai eff_ "to obtain public acceptance" of its plan. Thus the process of
the community's accommodation to new demands of law upon it, the development of habits of acceptance
of the right of eolored children to the equal protection of the laws guaranteed by the Constitution, had
peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded
by those io control of the government of Arkansas was thus described by the District Court, and these
f'mdings of fact have not been eontroverted:
"14. Up to this time, no crowds had gathered about Central High Sehool and no acts of violence 01' threats
of violence in connection with the eanying out of the plan had Otturred Nevertheless, out of an
a1nmdance of .. ",ntion, 1M school authorities h.-.d h,f' i loS. L 21J fnfJ ..... ntly conferred "ith the
and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any
possible disturbances or acts of violence in connection with the attendance of the 9 colored students at
Central High SehooL The Mayor considered that the Little Rod: police force could adequately cope with
any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school
authorities made no request to tbe Governor or any representative of his for State assistance in
maintaining peace and order at Central High SchooL Neither the Governor nor any other official of the
State government consulted with the Little Rock authorities about whether the Little Rock police were
prepared to cope with any incidents which might arise at the sehooI, about any need for State assistanee in
maintaining peace and order, or abont stationing the Arkansas National Guard at Central High School.'
156 F. Supp. 220, 225-
All this was disrupted by the introduction of the state militia and by other obstructive measures taken by
the State. The illegality of these interferences with the constitutional right of Negro children qllillilled 10
enter the Central High School is tmaffeeted by whatever action or non-adion the Federal Govemment load
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seen fit to take. Nor is it nentm1ized by the lBldoubted good faith of the Little Roek School Board in
endeavoring to discharge its ooDStitutionai duty.
The use of IOtee to further obedienre to law is in any event a last resort and one not congenial to the spirit
of our Nation. But the tragic aspect of this disruptive taetie was that the power of the State was used not to
sustain law but as an instrmnent for thwarting law. The State of Arkansas is thUll responsible for disabling
one i :-I5S F S L of its subordinate agenci<>s, the Little Rock School Board from peacefully e<lrrying
out the Board's and the Stste's constitational duty. Aeeordingly, while Arkansss is not a IOrmal party in
these and a decree cannot go &giIIinst the State, it is legally and morally before the Court.
We sre now asked to hold thst the iIlegsl, lOn:ible interference by the State of Arkansas with the
continuance of what the Constitution commands, and the consequences in disorder that it entrained,
should be reeognized 58 justification for undoing what the School Board had IOrmnlated, what the District
Court in 1955 had directed to be carried out, and what W8S in process of obedience. No explanation thst
may be offered in support of such a request can obscure the inescspable meaning that law should bow to
foree. To yield to such a claim would be to enthrone offieiallawlessness, and lawlessness ifnot checked is
the precursor of anarchy. On the few tragic oceasions in the h:istmy of the Nation, North and when
law was IOrcibly resisted or systematically evaded., it hss signalled the hreakdown of constitutional
processes of pemtnent on which ultimately rest the liberties of all. Vwlent resistance to law cannot be
made a Iiogal reason for its suspension withont loosening the fabric of our society. What could this mean
but to acknowledge that disorder lB1der the aegis of a State hss moral superiority over the law of the
Constitution? For those in anthority thus to defy the law of the land is profoundly suhveosive not only of
our constitutional system but of the presuppositions of a democratic society. The State "must yield to
an authority that is paramount to the State."This language of command to a Stste is Mr. Justice Holmes',
speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice
Brandeis, Mr. Justice Sutherland, FS. L Mr. Jm ..... Bn1l<-r. and Mr. Jusliee Stone. Wiseonsin
Y. Illinois. :!Jll "'S. r'Ij, l'F .
When defiance of law judieially pronounced was last sought to be justified before this Court, views were
expressed which are now especially relevant:
"The bistorie phrase 'a government of ..... and not of men' epitomizes fhe distinguishing character of our
political society. When Joim Adams put that phrase into the Massaelmsetts Declaration of Rights he was
not iDduIging in a rhetorieal flourish. He W8S expressing fhe aim of those who, with him, framed the
Declarstion ofIndepeudenee aad fOlmded the Republic.. 'A government of laws and not of men' W8S the
nIjeeIIon in positive terms of rule by fiat, whether by the fiat .. governmental II[ prjyete r !lye. ect
of government may be cballenged by an appesl to lew, as finally' PrmMlunced by this Court. Even this Court
has the, LEt say only for a time. Being eompo&ed of fallible men it JDDY err &" !'!!Vision of Its errors
be by orderly process of law. The Court may be asked to reooosider its decisions, and this has been done
apin and aw>in throughout out history. Or, what this Court hss decmed its dotty to decide
may be changed by legislation, as it often 11M been, and, on occasion, hy c.-titational amendment.
"But from their own experience and their deep reading in history, tbe Founders knew that Law alone saves
a society from being rent by internecine strife or ruled by mere brute power however disguised.
Civilization involves subjection of IOtee to reMOIl, and the "3I'ney of this subjection is law.' (Pound, The
Future of Law (1937) 47 Yale L.J.1, 13-) The conreption ofagovemmentby laws dominated fhe thoughts
of t:bos.> \\'ho folmdt-d this T.S. 1. 5ql Nation and designed its Constitution, although they knew as
wen as the belittlers of the conception thst laws have to be made, interpreted and eufon:ed by men. To
that end, fhey set apart a body of men, who were to be the depositories of law, who by their disciplined
training and character and by withdrawal from the usual temptations of private interest may reasonably
be expected to be 'as free, impartial, and independent as the lot ofhnmanity will admit: So strongly were
the framers of the Constitution bent on securing a reign of law that fhey endowed the judieial office with
extraonlinary safeguards and O!e, 00 __ how rxalted his """lie office ac bow ri&h-
his private motive can he pKige in bWOW!'''''''' Tbat is what oourtssre lOr." UnitedStatesv. United Mille
Wack ...... , J3{) 1'_'>. 2.,8. -309 (coneurring opilllOn/.
The duty to abstain from resistance to "the supreme Law .. the Land," u.s. Const.,Art. VI 0 2, as
declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor
does it deny the right of dissent. Criticism need not be stiIIed. Active obstruction or defiance is barred. Our
kind of society cannot endure if fhe controlling authority of the Law as derived from tbe Constitution is
not to be the tribonai specially charged with the duty of ascertaining and declaring what is "the supreme
Law of the Land." (See President Andrew Jackson's Message to Congress of January 16, 1833, n
Richardson, Messages and Papers of the Presidents (1896 ed.), 610,623-) Partienlarly is this 80 where the
declaration of what "the supreme Law" commands on an lB1derIying moral issue is not the dubious
pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative
proeess. TIl<' Constitution is not a... formulation of tlw [;",8 P $. 1. :.."j m .... .-Iy lJt"rsonal tiews of the
members of this Court, nor can its authority be redueed 10 the claim that _e officials are its controlling
interpreters. Local customs, however hardened by time, are DOt de<:reed in heaw.n. Habils omd feelings
they engender may be counterac:tedand 1IlOderMed. ExperieBre _that such IoeaI habits and
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will yield, gradually though this be, to law and edueation. And edueatiooal influences are exerted not only
by explicit teaching. They vigorously flow fmm the fruitful exercise of the responsibility of u-e eboqed
with political official power and from the "'-t UI1OOIISCiously t1'mlsfonninp, aetuaIities of living under
law.
The process of ending unronstitutional exclusion of pupils from the common sehooI system - "common"
meauiug shared alike - solely because of color is no doubt uot an easy, overnight task in a few States where
a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred.
They will not be calmed by letting viole""" loose - violenoe and defiance employed and encouraged by
those upon whom the duty of law observance should have the strongest claim - nor by submitting to it
under whatever guise employed. Only the eoDStmetiYe use of time will adrieYe wbat an admnced
civilization demands and the Constitution confirms.
For carrying out the decision that color alone cannot bar a child from a public school. this Court has
recognized the diversity of circumstanees in IoeaJ school sill_lions. But is it a reasonable hope that the
necessary endeavors fur such a<ljustment will be furthered, that racial frictions will be ameliorated, by a
reversal of the process and interrupting effedive measures toward the neeessaJY goal? The progress that
has been made in respecting the constitutional rights of the Negro children, aecording to the graduated
plan _tioned In- the two b'iO LS. 1, 26] lower courts. would haw to t... retraced. p .. rhaps "ith ewn
greater difficulty because of deference to furcible resistanre. It would have to be retraced against the
seemingly vindicated feeling of those who actively so.t to block that progress. Is there not the strongest
reason for concluding that to attede to the BoonI's request, OR the '-is of the eircumslanees that gave
rise to it, fur a suspension of the Board's non-segregation plan, would be but the beginning of a series of
delays ea1enJated to aoIlify this Court's adamant decisions in the Brown case that the Constitution
precludes compulsory segregation based on rob in state-supported sehools?
That the responsibility of !bose who exereise power in a democnltie government is not to reflect inflamed
public feeling but to help form its understanding, is espeeially true when they are confronted with a
problem like a raeially diseriminating public school system. This is the 1esson to be drawn from the
heartening experience in ending enfureed l'8CiaI segregation in the public sehools in cities with Negro
populations of large propurtions. Complianee wilh decisions of this Court. as the constitutional organ of
the supreme Law of the Land, has often, throughout our history, depended on active support by state and
local autborities. It presupposes such support. To withhold it. and indeed 10 use political power to try to
paralyze the supreme Law, precludes the maintenance ofoUl' federal system as we have known and
cherished it for one hundred and seventy years.
Lincoln'. appeal to "the better IIDlJI'Is of our nature' failed to _ a fnolricidal war. But the comppscimate
wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with bbod, a moral
heritage wIUch, when drawn upon in times of stress andstrife, is sure to find specific ways and meansto
......-w: diftieulties that may appear to he inslJl1JJOUlWlble.
[}'"otnnt
p
< J [NOTE: This opinion was filed October 6. 19;;8.Jl3.
c
,1' FS. I. :r:'j
AUGUST 28, 1958.
MiseelJaneous Order.
No. 1, Mise. AARON ET AI.. v. COOPER Ef AL., MEMBERSOFTIIE BOARD OF DIRECTORS OF THE
LfITl.E ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICf, ET AL. On applieation for vacation of
the order of the U niled States Court of Appeals fur the Eighth Circuit staying issuance of its mandate and
for a stay of the order of the United States Dislriet Court for the Eastern Distriet of Arkansas and tor such
olher orders as petitioners may be entitled to. Argued August 28, 1958.
Having considered the oral arguments, tbe Court is in agreement with the view expressed by counsel for
the respective parties and by the Solicitor General that petitioners' present application respecting the stay
of the mandate of the Court of Appeals and of the order of the Distriet Court of June 21, 1958, necessarily
involves consideration of the merits of the Court of Appeals deeision reversing the order of Judge Lemley.
The Court is advised that the opening date of the High Sehool will be Septemher 15- In light of this, and
representations made by counsel fur the Sehool Board as to the Board's plan for filing its petition for
eertiol'llri, the Court makes the fuDowing order:
1. The Sehool Board's petition fur certiorari may be filed not later than September 8, 1<)58.
2. The briefs of both parties on the merits may he filed not later than September 10, 1958.
3- The Solicitor General is invited to file a brief by September 10, 1958, and to present oral argument if he
is so a<kised. 1:.l.'i!J FS. L ::cSl
4. The Rules of the Court requiring printing of the petition, brie", and reeord are dispensed with.
5. Oral argument upon the petition for certiorari is set for September 11, 1958, at twelve 0' dock noon.
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6. Action on the petitioners' application addressed to the stay of the mandate of the Court of Appeals and
to the stay of the order of the District Court of Jtme 21, 1C}58, is defened pending the disposition of tDr
petition for certiorari duly filed inoooordaore with the
Thurgood Marsball argued the cause for petitioners. With him on the brief were Wiley A. Branton, Jack
Greenberg and W i1Iiam CoJetnan, Jr. Richard C. Butler argued the cause for respondents. With him on the
brief was A. F. House. Solicitor General Rankin, at the invitation of the Court, argued the cause for the
United States. as amicus curiae, urging that the relief sought by petitioners should be granted. With him
on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer.
SEPTEMBER 4, 1958
Dismissal Under Rule 60.
No. 116, October Tenn, 1958. AMERICAN BROAOCASIlNG-PARAMOUNTTHEATRES, INC., v.
UNITED STATES. Appeal from the United States District Court for the Southern District of New York.
Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Albert C. Bickford for appellanL
Oscar H. Davis, then Acting Solicitor GenemI, for the United States. Reported below: 165 F. Supp. 643
SEPTEMBER 11, 1958.
Miscellaneous Order.
NO.1, Misc. AARON ET AL. v. COOPER ET AL., MEMBERS OF'IlIE BOARD OF DIRECTORS OF THE
IJTTLE R(X'K. ARKANSAS. [1:)8 U.S. 1, :.!'.'.I INDEPENDENf SCHOOL DISTRICf. ET AI,. On
application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying
issuance of its mandate and for a stay of the order of the United States District Court for the Eastern
District of Arkansas and for such other orders lIS petitioners may be entitled to. Motion for leave to file
brief of J. W. Fulbright, as amicus curiae, denied. Motion for leave to file bricf of John Bradley Minnick, as
amicus curiae, denied. Motion for leave to file brief ofWiHiam Burrow, as amicus curiae, denied.
Certiorari Granted
NO.1. COOPER hi' AL., MEMBERS OF THE BOARD OF DIRECI'ORS OFTHE LITTLE ROCK,
ARKANSAS, INDEPENDENf SCHOOL DISTRICf, ET AL. v. AARON ET AI.. On petition for writ of
certiorari to the United States Court of Appeals for the Ejghth CireniL Motion for leave to file brief of
Arlington County Chapter, Defenders of State Sovereignty of Individual liberties, as amicus curiae,
denied. Motion for leave to file brief of James M. Burke, as amicus curiae, denied. Motion for leave to file
snit for declaratory judgment in re Little IWek and for other relief denied. Petition for writ of certiorari to
the United Slates Court of Appeals for the Ejghth Circuit granted. Richard C. Butler,A. F. House and, by
special leave of the Court, John H. Haley, pro hac vice, for petitioners. Thurgood Marsball, Wiley A.
Branton, William Culetnan, Jr., Jack Greenberg and Louis H. Pollak for respondents. Solicitor General
Rankin, appearing at the invitation of the Court, adhered to his brief filed in NO.1, Misc., August Special
Term, 1958, urging that !be relief sought by respondents should be granted. With him on this brief were
H. Dm,is. Philip Elman and R ....lph S. Sprilz<or. R<'ported )"'10",: 2;)" F.2d 33. !3;-""< gs. 1. :)0]
SEPTEMBER 12, 1958.
Dismissal Under Rule 60.
No. 38, Mise., October Term, 1958. BLOCH v. COMMISSIONER OF INTERNAL REVENUE. On petition
fur writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Dismissed per stipulation
pursuant to Rule 60 of tbe Rules of this CourL Petitioner pro se. Solicitor General Rankin for respondent.
Reported below: 254 F.2d 'ZTl.
SEPTEMBER 17, 1958.
Dismissal Under Rule 60.
No. 87, October Term, 1958. ALLEN N. SPOONER&: SONS, INC., ET AL. v. PORT OF NEW YORK
AUTHORI1Y. On petition forwrit ofeertiorari to the United States Court of Appeals fur the Seeond
CireniL Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Martia J. McHugh was
on the stipulation for petitioners. With him OIl the petition was Thomas F. Daly. John M. Aheme was on
the stipulation for I'<'SpondenL Reported ""low: 25:l F.2d:;l4. [:1:,8 1'.S, 1, 31)
Nf?NS AND CQP.,1MENTARY HeaJlines l La'l"< > Featuf<?'d Do:::uments:' " i R:;:S
GET LEGAL FORMS L.;;ga; F<:>m1S k'of Y ("-', PraotlcE,
ABOUT US Company Histor:i f Media Reiai!ons ' Us :" Aj-:nI51fig / ",'cbs
FINO USON
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,55 Wn. App. 505, D.C.R. ENTERTAINMENT v. PIERCE COUNTY
55 Wn. App. 505, D.C.R. ENTERTAINMENT v. PIERCE COUNlY
CITE: 55 Wn. App. 505, 778 P.2d 1060
D.C.R. ENTERTAINMENT v. PIERCE COUNlY
CAUSE NUMBER: 23175-8-1
FILE DATE: September 11,1989
CASE TITLE: D.C.R. Entertainment, Inc., Respondent, v. Pierce County, Appellant.
Page 1 of5
[1] Municipal Corporations - Ordinances - Construction - Legislative Intent - Prior Acts and Constructions. A local
legislative body is presumed to be aware of existing enactments when it passes new legislation.
[2] Ucenses - Constitutionally Protected Activity - Grounds for Denial - Specific Grounds. A license to engage in
constitutionally protected expression may not be denied based on the applicanfs character. the effect of the activity on the
general welfare. or a past violation of law.
[3} Ucenses - Constitutionally Protected Activity - Grounds for Denial - Absence - Effect. In the absence of objective facts
justifying the denial of a license to engage in constitutionally protected expression under an ordinance setting forth the sole
grounds for denying a license, the issuance of a license is mandatory.
[4] Mandamus - Public Official or Body - Ministerial Act Mandamus is a proper remedy to compel a public entity to carry
out a nondiscretionary, ministerial act.
[5} Administrative Law - Judicial Review - Exhaustion of Administrative Remedies - Constitutionally Inadequate Remedy.
An aggrieved party's failure to exhaust available administrative remedies does not prevent a court from granting an
extraordinary writ if the administrative review procedures do not satisfy minimum constitutional requirements.
[6J Obscenity - Nudity - Nude Dancing - Constitutional Protection. Nude dancing constitutes expression protected by the
First Amendment and Const. art. 1. 5.
[7J Constitutional Law - Freedom of Speech - Prior Restraint - Test. Prior restraint of constitutionally protected expression
is valid only if (1) the burden of initiating judicial proceedings, and of proving the validity of the restraint. is on the restraining
party, (2) any restraint before judicial review must be for a specified brief period and must maintain the status quo, and (3) a
prompt, final judicial determination must be assured.
[8] Ucenses - Constitutionally Protected Activity - Grounds for Denial - Nature. The denial of a license to engage in
constitutionally protected expression must be based on a justification that is content-neutral, must directly advance a
significant or compelling governmental interest, and must be the only practical means of achieving the governmental
interest
[9] Obscenity - Nudity - Nude Dancing - Excludng Minors - Governmental Interest The prevention of the employment of
minors as nude dancers constitutes a compelling governmental interest.
[101 Property - Permits - Administrative Error - Attorney Fees - Action for Damages - Necessity. To be eligible for an
attorney fee award under RCW 64.40.020(2), a party aggrieved by a governmental body's action concerning a real property
permit application must have prevailed in an action for damages.
NATURE OF ACTION: The owner of a nude dancing establishment sought to compel a county to
issue it an adult entertainment license.
Superior Court: The Superior Court for King County, No. 87-2 17312-7, Jim Bates, J., on February
10, 1989, granted a writ of mandamus and awarded the plaintiff attorney fees.
Court of Appeals: Holding that the appeal is not moot, that the issuance of an adult entertainment
license is not a discretionary act, and that the plaintiff did not have an adequate remedy at law, but
that there was insufficient evidence to determine whether the license denial was the only practical
means of achieving the county's legitimate objectives, and that there was no basis for awarding the
plaintiff attorney fees, the court AFFIRMS the writ of mandamus, REVERSES the attorney fee award,
and REMANDS the case to determine whether the denial of a license is the only way to prevent
illegality at the plaintiffs establishment.
COUNSEL: JOHN W. LADENBURG, PROSECUTING ATTORNEY, and CHRIS QUINN-
BRINTNALL, SENIOR APPELLATE DEPUTY, for appellant.
JACK R. BURNS and BURNS & HAMMERLY, P.S., for respondent.
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_ 55 Wn. App. 505, D.C.R. ENTERTAINMENT v. PIERCE COUNTY
AUTHOR OF MAJORITY OPINION: Webster, J.-
MAJORITY OPINION:
Page 2 of5
Pierce County appeals a writ of mandamus compelling its Auditor to grant an adult entertainment
license and an order requiring it to pay attorney's fees in the mandamus action. O.C.R.
Entertainment, I nco (OCR) seeks attorney's fees on this appeal pursuant to RAP 18.1, relying as it did
below on RCW 64.40.020.
FACTS OCR operates a nude dancing establishment. Initially, it conducted its business pursuant to a
topless dancing license. The County then passed an ordinance on August 25, 1987, which required
all businesses offering nude dancing entertainment to obtain an adult entertainment license. Pierce
County Code (PCC) 5.14.020. OCR applied for an adult entertainment license on September 14,
1987, soon after the new ordinance became effective.
The new law required license applicants to pay a $500 license fee and to wait 2 weeks. PCC
5.14.030. The ordinance mandated denial of a license for any false statement or information in
connection with a license application or any violation or permitted violation of its provisions. PCC
5.14.070. OCR interpreted these provisions to require the County Auditor to issue a license within 2
weeks if there were no grounds for denying a license. When 2 weeks passed and the County told
OCR that a license would not issue for several more weeks, OCR sought a write of mandamus.
Ten days later, the Pierce County Auditor provisionally denied OCR's application pursuant to a
general licensing provision. This provision permits the County Sheriff to object to the issuance of a
license by alleging facts tending to show that the issuance of the license "will harm the public health,
safety or morals, or will result in a violation of the zoning or license code, or violation of other laws".
PCC 50.01.040. At the time, a license revocation proceeding was scheduled to determine whether
OCR's Original topless dancing license should be revoked. Also, criminal charges were pending
following an alleged raid on OCR's premises.
The Superior Court for King County, having venue pursuant to RCW 36.01.050, initially ordered the
Pierce County Auditor to make a final decision by November 2, 1987. The Auditor denied OCR's
application on November 5,1987, citing incomplete fingerprint information on OCR's application form
and its alleged employment of underage and unlicensed dancers. The Superior Court reversed the
Auditor's decision and ordered the County to issue a license.
MOOTNESS OCR argues that the County's appeal is moot for two reasons. First, the County issued
an unrelated dance license on May 31, 1988. Thus, OCR maintains, the County waived its objection
under the general licensing provision. Second, OCR notes that more than a year has passed since
the Auditor's final decision. Under the new ordinance, an applicant may not be denied an adult
entertainment license for more than a year. PCC 5.14.070.
Neither argument applies to the award of attorney's fees. The propriety of the award is plainly not
moot, since the County still has to pay it. The mandamus issue is not moot either. The unrelated
dance license does not authorize OCR to offer nude dancing to its patrons. PCC 5.14.020. Nor was
OCR denied an adult entertainment license for more than a year, because the Superior Court
ordered the County to issue the license. Presumably, OCR still has that license.
AVAILABILITY OF MANDAMUS
The County argues that issuance of an adult entertainment license is discretionary, and that no
abuse of discretion is present. Further, the County contends, OCR waived a plain, speedy, and
adequate remedy at law by not pursuing an administrative appeal. Either claim, if valid, precludes a
statutory writ of mandamus. SEE RCW 7.16.160; RCW 7.16.070; BOCK V. BOARD OF PILOTAGE
COMM'RS, 91 Wn.2d 94, 98, 586 P.2d 1173 (1978).
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[1] We reject the County's argument that issuance of an adult entertainment license is discretionary.
The County's argument is premised on a reading of its general licensing provisions in PCC 50.01 to
supplement its adult entertainment chapter, PCC 5.14. This premise is flawed as a matter of
statutory construction, because the general licensing provisions apply by their terms only to licenses
issued under title 50. 1
1 SEE pee 50.01.030 (identifying grounds for denial of licenses "issued pursuant to the provisions of this title");
50.01.040 (allowing sheriff 'While an application for any license provided for under the provisions of this title is pending" to
petition for denial of the same); 50.01.050, .070, .080, .090 (respectively specifying 1-year duration, requirements for
renewal, mandatory display on premises, and grounds for suspension and revocation of licenses "issued pursuant to the
provisions of this title"); 50.01.100-.110 (creating office of hearing examiner with authority to deny, suspend, or reVOke any
license "authorized pursuant to this title" to handle "cases filed pursuant to the provisions of this title"); 50.01.130
(establishing right of appeal for "[a}ny aggrieved person having standing under this tiUe"); 50.01.150 (limiting transfer of and
reapplication for licenses "issued pursuant to this chapter"); 50.01.170 (requiring "applicant for any license under this
title" to carry liability insurance); 50.01.180 (conditioning "privilege of having any license induded in this title" on consent to
inspection of licensed premises); 50.01.190-.200 (setting daily monetary penalty for engaging in any licensed activity ''for
which a license is required pursuant to the provisions of this title"); 50.01.210 (establishing misdemeanor penalty for
"violating or failing to comply with any of the provisions of this title"); 50.01.220 (providing for seizure of license "when a
violation of the title has been committed').
The Pierce County Council is presumed to have known this when it enacted the adult entertainment
ordinance. SEE BAKER v. BAKER, 91 Wn.2d 482, 486, 588 P.2d 1164 (1979); KINGSTON
LUMBER SUPPLY CO. v. HIGH TECH DEV.INC., 52 Wn. App. 864, 866, 765 P.2d 27 (1988).
[2] The Council presumably concluded, after having its former law banning nude dancing struck
down, that only a plain, clear, and concrete regulation of nude dancing would pass constitutional
challenge. SEE BSA, INC. v. KING CY., 804 F.2d 1104, 1106-09 (9th Gir. 1986) (striking down PCC
35.02.308A-O on First Amendment grounds). The new ordinance makes denial, suspension, or
revocation of an adult entertainment license mandatory if objective, content neutral facts are
established: false information in connection with a license application or any violation or permitted
violation of the ordinance. PCC 5.14.070. In contrast, the general licensing provisions require "good
moral character", PCC SO.01.030(A), and permit the County to deny licenses based on lithe public
health, safety or morals" or potential or past violations of any law. pce 50.01.040. These provisions
may not be applied to adult entertainment licenses, because a license to engage in constitutionaUy
protected expression may not be denied based on the "character of the applicant" or the "effects
upon the general welfare". STAUB v. BAXLEY, 355 U.S. 313, 314 n.1. 321, 2 L. Ed. 2d 302, 78 S.
Ct. 277 (1958). Denying an adult entertainment license based on a past violation of law is equally
invalid. SEATTLE v. BITTNER, 81 Wn.2d 747, 505 P.2d 126 (1973).
[3, 4] The new ordinance sets forth the sole grounds for denying an adult entertainment license, and
those grounds are not discretionary. SEE PGG 5.14.070. The ordinance does not expressly make
issuance of a license mandatory when grounds for denial are not present, but it must be so
construed. Otherwise, there would be an unconstitutional absence of standards to guide licensing
Officials. SEE KUNZ v. NEW YORK, 340 U.S. 290, 293, 95 L. Ed. 2d 280,71 S. Ct 312 (1950); SAIA
v. NEW YORK, 334 U.S. 558, 559-60, 92 L. Ed. 1574,68 S. Ct. 1148 (1947). The County Auditor
has no discretion to deny an adult entertainment license; thus, issuance is a ministerial act which
mandamus may compel. SEE STATE EX REL. KLAPPSA v. ENUMCLAW, 73 Wn.2d 451,453,439
P.2d 246 (1968); STATE EX REL. CRAVEN v. TACOMA. 63 Wn.2d 23, 27, 385 P.2d 372 (1963);
TEED v. KING CY., 36 Wn. Apo. 635,643-44,677 P.2d 179 (1984).
[5] We next address the County's argument that OCR had a plain, speedy. and adequate remedy at
law. The general rule is that a party who fails to exhaust administrative remedies may not be heard to
challenge them by way of mandamus. BOCK, at 98 (interpreting RCW 7.16.170); LECHELT v.
SEATTLE, 32 Wn. ApD. 831, 650 P.2d 240 (1982). This rule is not applicable because the County's
administrative review procedures do not satiSfy minimum constitutional requirements.
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Page 4 of5
[6, 7] Nude dancing is protected expression under the First Amendment, SCHAD v. MOUNT
EPHRAIM, 452 U.S. 61, 66, 68 l. Ed. 2d 671, 101 S. Ct. 2176 (1981), and under article 1, section 5,
of our State Constitution: "Every person may freely speak, write and publish on all subjects, being
responsible for the abuse of that right." SEE O'DAY v. KING CY., 109 Wn.2d 796,802-03,749 P.2d
142 (1988). The prevailing view under the First Amendment is that nude dancing is entitled to the
same degree of protection as is expression at the core of the amendment. SEE KEV, INC. v. KITSAP
CY., 793 F.2d 1053, 1058 (9th Cir. 1986). "The settled rule is that a system of prior restraint "avoids
constitutional infirmity only if it takes place under the procedural safeguards designed to obviate the
dangers of a censorship system .... SOUTHEASTERN PROMOTIONS, LTD. v. CONRAD, 420 U.S.
546, 559, 43 l. Ed. 2d 448, 95 S. Ct 1239 (1975) (quoting FREEDMAN v. MARYLAND, 380 U.S. 51,
58, 13 l. Ed. 2d 649, 85 S. Ct. 734 (1965. At least three safeguards are required: (1) the burden of
instituting judicial proceedings, and of proving the validity of the restraint, must rest on the censor; (2)
any restraint prior to judicial review must be for a specified brief period and must maintain the status
quo; (3) a prompt, final, judicial determination must be assured. SOUTHEASTERN PROMOTIONS,
420 U.S. at 560; FREEDMAN, 380 U.S. at 58-59.
Passage of the new ordinance, coupled with the County's denial of an adult entertainment license,
upset the status quo. The Auditors decision acted as a prior restraint because, without a license,
OCR could not engage in protected expression. PCC 5.14.020. The licensing requirement cannot be
characterized as a time, place, or manner restriction, because it contains no temporal, geographiC, or
other limitation, other than its jurisdictional scope. SEE STATE v. COE, 101 VVn.2d 364, 373, 679
P.2d 353 (1984); PCC 5.14.020. The administrative appeal procedures available to OCR did not
ensure prompt, final, judicial review within a specified brief period. They did not require the County to
institute immediate judicial proceedings to justify the license denial. In!' act, OCR had to safeguard
its constitutional right by mandamus. OCR did not have a constitutionally adequate remedy in the
ordinary course of law, so mandamus was appropriate to provide that remedy. SEE RCW 7.16.170.
ORDER COMPELLING LICENSE
The Superior Court accepted the County's allegation that OCR violated the new ordinance by
providing incomplete or false fingerprint information and by employing underage and unlicensed
dancers. However, the court found, "the investigation which revealed these violations was itself
flawed due to excessive delay." We are aware of no authority for an exclusionary rule in the current
context Thus, our only inquiry is whether the County's allegations, if true, are constitutionally
sufficient to deny an adult entertainment license.
[8] Denying an adult entertainment license has the effect of prosaibing protected expression. Thus,
the justification should (1) be content neutral, (2) directly advance a significant or compelling
governmental interest, and (3) employ narrowly tailored means so that the restraint on protected
expression is "no greater than is essential to the furtherance of that interest" UNITED STATES v.
O'BRIEN, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct 1673 (1968) (rule applicable to conduct
having expressive and non expressive elements; conviction for public burning of draft card upheld);
CF. ERZNOZNIK v. JACKSONVILLE, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Cl 2268 (1975) (display
of nude films at drive-in theater protected, though films were visible from adjacent streets and a
nearby church parking lot). 2
2 Vllhether or not this is the controlling federal standard, it is the proper one to apply under article 1, section 5 of our State
Constitution. CF. PEOPLE EX REL. ARCARA v. CLOUD BOOKS, INC., 68 N.Y.2d 553,503 N.E.2d 492,510 N.Y.S.2d 844
(1986). On remand, after being reversed by the United States Supreme Court on the ground that the O'BRIEN draft card
burning case was inapposite. ARCARA v. CLOUD BOOKS. INC., 478 U.S. 697, 92 LEd. 2d 568,106 S. Ct 3172 (1986).
the New York Court of Appeals nevertheless held, based on that state's constitution, that closure of a bookstore sufficiently
affected the owner's right of free expression, that the State had to show that dosure was "the only available means to abate
the nuisance." PEOPLE EX REL. ARCARA v. CLOUD BOOKS, INC., 68 N.Y.2d at 555. ACCORD, KITSAP CY. v. KEV,
INC .. 106 Wn.2d 135, 141.720 P.2d 818 (1986) ("abatement was the only way to stop the illegal activities at Fantasys").
Emphasizing that minimum national safeguards established by the United States Supreme Court could not be considered
dispositive in determining the scope of the state constitutional guaranty of free expression. New York's highest court
analyzed dosure as a prior restraint 68 N. Y.2d at 557-58, 510 N. Y.S.2d at 846-47. Significantly. the constitutional provision
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in question mirrored article 1, section 5, of our Constitution. SEE N.Y. Const. art. 1 8: "Every citizen may freely speak, write
and publish his sentiments on all subjects, being responsible for the abuse of that right ... ", QUOTED IN ARCARA 68
N.Y.2d at 556, n.*. Unlike the Fif$t Amendment, the quoted language virtually bans prior restraints per se. STATE v. CaE,
101 Wn.2d 364,374,679 P.2d 353 (1984).
Under the 3-part test, inaccurate and incomplete fingerprint information cannot serve as a basis for
refusing to issue a license to OCR, because the new ordinance does not require this information of
businesses. SEE PCC 5.14.040. The County does not need information that it does not require by
ordinance. Accuracy aids law enforcement, which is a significant interest, but it is fully served when
the County has the information it needs.
[9J The County's interest in preventing the employment of minors as nude dancers is compelling.
NEW YORK v. FERBER, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982). Requiring that all
dancers be licensed directly serves this interest. Denying an adult entertainment license altogether is
perhaps more effedive, but it is not narrowly tailored unless it is the only way to ensure that minors
will not be hired in the future.
The Superior Court did not permit the County to prove that denying a license is the only way to
achieve its legitimate objectives. Thus, we must remand for this factual determination. If the County
proves that ordinance violations are so "pervasive" at OCR's premises that denying a license is "the
only practical remedy", the County may deny the license. KITSAP CY. v. KEV, INC., 106 Wn.2d 135,
137, 140-41, 720 P.2d 818 (1986). However, "the constitution does not permit a licensing agency to
deny to any citizen the right to exercise one of his fundamental freedoms on the ground that he has
abused that freedom in the past." SEATTLE v. BITTNER, 81 Wn.2d 747, 756, 505 P.2d 126 (1973).
Thus, the County may not deny OCR a license for a lawful establishment elsewhere in the county.
SEE KEV, 106 Wn.2d at 143-44. ATTORNEY'S FEES OCR relies on RCW 64.40.020 to defend the
lower court's award of attorney's fees. The County contends that RCW 64.40.020 does not apply.
[101 An award of attorney's fees is proper only if specifically authorized by statute, by agreement of
the parties, or upon recognized equitable grounds. PENNSYLVANIA LIFE INS. CO. v.
DEPARTMENT OF EMPL. SEC., 97 Wn.2d 412. 413. 645 P.2d 693 (1982); CRANE TO'MNG, INC.
v. GORTON, 89 Wn.2d 161, 176,570 P.2d 428,97 AL.R.3d 482 (1977). RCW64.40.020 authorizes
an award of attorney's fees only in favor of "the prevailing party" of an "action for damages" brought
under chapter 64.40. SEE RCW 64.40.02Q(1}, (2). Here, OCR concedes that it did not bring an
action for damages under RCW 64.40.020. OCR did not even have an action for damages, because
the operation of its business was not affected by the County.
We reverse the award of attorney's fees because OCR could not have satisfied the prerequisite for
an award of attorney's fees under RCW 64.40.02Q(2). We affirm the writ of mandamus. The County's
denial of an adult entertainment license imposed a prior restraint without affording OCR procedural
safeguards to which it was constitutionally entitled. However, we remand to permit the County to
prove its allegations. If the County proves that denying a license is the only way to prevent illegality
at OCR's premises, OCR's license for those premises may be revoked.
Affirmed in part, reversed in part, and remanded.
CONCURRING JUDGES:
Swanson and Forrest, JJ., concur.
POST-OPINION INFORMATION:
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Detectives obtain fetal tissue
..... taken after.abortion
as Investigation
man for the Spokane Department.
"It's just bIle more piece ofevidence to sol-
iQifythecase." '.
DeRitwe said the ev'idenee will be sent to
Staff reports the state crime tab for DNA testing, which
could take several months. The suspect has
SpokallepOJice investigating a cbildrape not been arrested. and the investigation is
served aseareh warrant for an ongoing, DeRuwe said. .
aborted ktus at Planned ParenthOod this . Deauwe said the search warratttwasob-
week. tained of strictmemcal
DetectivesobaiiBed asampleoffeta1tis- 1ft's; eVen though the patient ga\ie per-
sue and n1aternal matter after an abortion' mission.
that Wasperfonnedona 15-year-old girl Planned Parenthood declined to answer
Wednesday at the East Indiana avenue questions but said iIi a prepared
clinic. . thatk is "committed tothe pri.v8cyofalfpa-
... liprce.
e
:= tients."
uuu. Ub,,,. pranned ..., avu un: "'Weare proUd topart:nerwith, Jaw en-
and detectives want to do a DNA test to furc'@lentiJlordettoprotect ealthand
$trengt:he1,\:the case the. suspected safety of th ent.said
21 ar <whoiVias ,'wsalllo-
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Said Officer Jennifer DeRuwe,
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Page 99
1
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FILED
SFP 30 Z011
THOMM fi\ I'AbbGUIST

SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
8 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
9 and DOUGLAS TURNER
No. 11-2-03051-7
10
11
12
13
14
15
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18
19
20
21
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23
24
25
26
27
28
Petitioners,
v.
SPOKANE POLICE DEPARTMENT, and
CITY OF SPOKANE,
Res ondents.
RESPONDENTS' MOTION TO
DISMISS PETITION FOR WRIT OF
MANDAMUS
COME NOW the respondents City of Spokane and Spokane Police
Department, by and through their undersigned attorney, and move this Court for an
order dismissing petitioners' petition for writ of mandamus.
This motion is based upon the memorandum of authorities filed herewith, and
the Court's files and records.
DATED this 30
th
day of September, 2011.
RESPONDENTS' MOTION TO DISM1SS
PETITION FOR WRIT OF MANDAMUS -
1
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 6256225


Page 100
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FILED
30 2011
fHOMAS R. f'AI.LQUIST
COUNTY CLeRK
SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
10 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
11 and DOUGLAS TURNER No. 11-2-03051-7
12
13
14
Petitioners,
v.
RESPONDENTS' MEMORANDUM OF
AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS
15 SPOKANE POLICE DEPARTMENT, and
CITY OF SPOKANE,
16
17
18
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20
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25
26
27
28
Respondents.
I. INTRODUCTION.
The petitioners seek a writ of mandamus by which they want the court to order
the City of Spokane Police Department to enforce Washington's criminal homicide
laws against the practice of lawful abortion at a "Planned Parenthood" office in
Spokane. The Respondents seek to have the petition dismissed because: (a) the
petitioners do not have standing; and (b) mandamus does not lie, for a variety of
reasons, to compel the respondents to generally enforce the criminal laws.
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
1
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 101
1 II. ISSUES.
2
A. DO THE PETITIONERS HAVE STANDING TO BRING THIS
3
MANDAMUS ACTON?
4
5
B. DOES THE PETITION SET FORTH A COGNIZABLE BASIS FOR THE
6
ISSUANCE OF A WRIT OF MANDAMUS TO COMPEL POLICE TO GENERALLY
7
8
ENFORCE CRIMINAL LAWS?
9 III. ARGUMENT.
10
A. MANDAMUS IS AN EXTRAORDINARY WRIT; GENERAL PRINCIPLES.
11
It is well settled in Washington law that mandamus is an extraordinary writ.
12
Walker v. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994); Eugster v. City of
13
14
Spokane, 118 Wn.App. 383,402,76 P.3d 741 (2003). Under RCW 7.16.170 and
15 Washington case law, the applicant for a writ of mandamus must satisfy three
16
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elements before a writ will issue:
... (1) the party subject to the writ is under a clear duty to act, RCW
7.16.160; (2) the applicant has no "plain, speedy and adequate remedy
in the ordinary course of law," RCW 7.16.170; and (3) the applicant is
"beneficially interested." RCW 7.16.170.
Eugster, id.
B. THE PETITIONERS DO NOT HAVE STANDING.
The "beneficially interested" element involves the concept of standing.
Eugster, supra, at 402. An applicant for a writ of mandamus has standing if the
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
2
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 6256225
FAX (509) 625-6277

Page 102
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applicant is beneficially interested in the duty asserted. /d.; Retired Pub. Employees
Council v. Charles, 148 Wn.2d 602, 616, 62 P.3d 470 (2003).
Here, the petitioners have not asserted any facts that would establish a
beneficial interest. They have asserted a variety of moral, ethical, political and
philosophical interests, but not a direct beneficial interest in the alleged duty of law
enforcement officers to enforce homicide laws against the lawful medical practice of
abortion. Hence, they do not have standing to seek the writ.
C. THE PETITION DOES NOT SEEK A COGNIZABLE CLAIM BECAUSE
MANDAMUS WILL NOT LIE TO COMPEL POLICE TO GENERALLY
ENFORCE CRIMINAL LAWS.
Even if petitioners have standing, their petition must be dismissed because
law enforcement officers are not under a clear duty to act to prevent lawful abortions
and/or arrest those involved in the medical practice of abortion.
Abortion is lawful if conducted in accordance with the provisions of Chapter
RCW 9.02 and RCW 9.02.110. The unauthorized performance of an abortion is a
Class C felony. RCW 9.02.120. However, the petitioners do not even seek a writ
regarding unauthorized abortions. Rather, they seek a writ against all abortions. As
such, the petition should be dismissed.
Even if the petition focused only on unauthorized abortions, the petition should
be dismissed because it seeks to compel the respondents to generally enforce the
criminal laws. For more than a century, the Washington courts have refused to issue
writs of mandamus when citizens have sought to compel government agencies to
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
3
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 103
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--------------- ---
generally enforce the law. State ex reI. Hawes v. Brewer, 39 Wash. 65, 80 P. 1001
(1905) sets forth the classic example.
The affidavit alleges that it is the duty of said officers, under and by virtue
of their oath of office and of the laws of the state of Washington, to
enforce the laws of said state, and make complaint against and
prosecute all persons who violate the laws of said state against keeping
saloons, cigar stands, and other places of business open for the purpose
of trade or sale of goods on the first day of the week, commonly called
Sunday, or who sell or dispose of any intoxicating liquor on Sunday as
aforesaid, or who rent houses for the purpose of prostitution, or who
gamble or run gambling houses, and in fact to complain of and prosecute
persons who commit crimes against the criminal laws of the said state of
Washington. It alleged that said laws have been for a long time past
openly and notoriously violated in said city, in that saloons, cigar stands,
etc., have been kept open on Sunday for the purpose of trade, and that
houses are being and have been rented in said city for the purpose of
prostitution, and that gambling with slot machines has been carried on,
and at length reciting the perpetration of the crimes and misdemeanors
committed in the city; that demand had been made upon defendants to
enforce the laws of said state against the violators thereof; that said
defendants, and each of them, have utterly failed, neglected, and refused
to enforce said laws, or any of them. This is the substance of the
affidavit. And the demand was made that an alternative writ of
mandamus issue to said defendants, requiring them to enforce said laws
and prosecute all persons guilty of the violation thereof, or to show cause
to the court why they neglected and failed so to do.
[W]e think there is no cause of action stated in the affidavit. The office of
mandamus is to compel an officer to perform a ministerial duty, and
cannot be used for the purpose of compelling the performance of a duty
which requires the exercise of discretion.
Mandamus will not lie to compel a general course of official conduct, as it
is impossible for a court to oversee the performance of such duties.
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
4
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 104
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There is no specific allegation of violation of duty in the petition. There is
no statement of any commission of crime by any particular person, and
we are unable to conceive to what effect an action for contempt could be
prosecuted in case there was a refusal on the part of defendants to obey
the injunction of the court.
Brewer, supra, at 66-68.
Similarly, the Washington Supreme Court refused to compel the Mayor
and Chief of Police of Seattle to enforce certain parking and traffic ordinances in
State ex reI. Beardslee v. Landes, 149 Wash. 570, 271 Pac. 829, 69 A.L.R. 973
(1928). The court noted at page 830:
It seems clear to us that mandamus is not an available remedy as
against this alleged failure of duty on the part of appellants. In State ex
reI. Hawes v. Brewer. 39 Wash. 65. 80 P. 1001. 109 Am. St. Rep. 858.1.
Ann. Cas. 197. this court held that:
'Mandamus will not lie to compel a general course of official conduct, as
it is impossible for a court to oversee the performance of such duties.'
While it is true that the petitioners in this case assert rights relating to a
serious subject - homicide - and the Beardslee case relates to a comparatively
insignificant issue '- parking tickets - the principles of law governing the court's
authority to issue a writ of mandamus in either matter are the same. Under
those principles, enumerated above, the petition must be dismissed.
CONCLUSION.
The Petition for Writ of Mandamus should be dismissed because the
petitioners do not have standing, mandamus is not available as a basis to challenge
the constitutionality of government action or inaction, there is no clear duty to act
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
5
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 992013326
(509) 6256225
FAX (509) 625-6277

Page 105
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under the law to enforce criminal homicide laws against the lawful practice of
abortion, and mandamus will not lie to compel a general course of official conduct, as
it is impossible for the court to oversee the performance of such duties.
RESPECFULL Y SUBMITTED this 30
th
day of September, 2011.
,t,
'acco N. Treppiedi, WSB
Assistant City Attorney
Attorney for Respondent
RESPONDENTS' MEMO OF AUTH IN
SUPPORT OF MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS -
6
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 106
FILED
nrT 11 l011
THOMAS [it FALLQUIST
SPOKANECOUNTYCl!RK
SUPERIOR COURT OF WASHINGTON, COUNTY OF SPOKANE
LAWRENCE CRONIN, VIRGINIA CRONIN
RICHARD HANSON, MICHAEL WALTERS
DOUGLAS TURNER
Petitioners,
vs.
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO. 11-2-03051-7
RESPONSE TO: MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS
AND RESPONDENTS' MEMORANDUM OF
AUTHORITIES IN SUPPORT OF MOTION
TO DISMISS PETITION FOR WRIT OF
MANDAMUS
INTRODUCTION
We herein respond to the City/Police's MOTION TO DISMISS and MEMORANDUM. However,
our major legal arguments stand as stated in our PETITION, REPLY TO RESPONSE TO PETITION
and ADDENDUM TO REPLY, which we filed previous to the hearing on September 30
th
We
apply these as responses to the City/Police's A, B, and C, Arguments. The City/Police have not
provided any responses to our PETITION'S legal arguments, the Supreme Court cases: Roe,
Casey, Gonzales, etc. discussed therein, nor to our legal rationale as based on the Declaration,
the Constitution and its Amendments.
As a primary question offaet in this case is "essential to the determination ofthe motion ... the
rights of the parties, and upon the supposed truth of the allegation of which the application for
the writ is based ... ", we ask the court to order a trial on the question of fact: Who is a human
being, who is a person?" RCW 7.16.210 (2010)
As we have stated in our documents, as is our right under the Constitution and the Ninth, Tenth
and Fourteenth Amendments: human beings and persons exist legally from conception until
death. The bodies of homicide victims exist at Planned Parenthood and other geographical
locations within the city. The City/Police have not provided responses to these realities in fact
orin law.
RESPONSE TO MOTION TO DISMISS, Page 1

Page 107
RESPONSE TO: III ARGUMENT IN RESPONDENTS' MEMORANDUM: A, B, AND C.
A. We made our argument for all three aspects that are cited in this section in the
PETITION (page 2); REPLY TO RESPONSE TO PETITION and in the ADDENDUM; to which
the City/Police have not responded.
We have argued that "we have a right to request that the homicide laws be enforced
equally at all geographicallocations ..... "(REPl V). not just at Planned Parenthood, as the
City/Police state in their introduction.
B. We have established a "beneficial interest" and standing via our arguments in the
PETITION ( page 2); REPLY TO RESPONSE TO PETITION and our ADDENDUM(pages,l-4).
We have stated legal interests. We have not cited any moral, ethical, political or
philosophical interests. The City/Police have never specified nor clarified what they
think our "moral, ethical, political and philosophical interests" are, nor have they made
a rational argument justifying their statements in this regard. In the case cited by the
City/Police, Retired Public Employees were granted standing and "beneficial interest" as
a result of their interest in pension funds to which they and their fellow human beings
contributed. The Petitioners' case, which is a case of human beings protecting the rights
of other fellow human beings' lives, is equally if not more justifiable. Retired Public
Employees Council v. Charles, 148 Wn.2d 602, 616, 62 P.3d 470 (2003).
We ask the City/Police to consider the following scenario as compared to our own.
Let's say a group of individuals reports to the Spokane Police Department that there are
bodies down at the Spokane River. The Police listen, but do nothing. This group of
individuals files a Petition for a Writ of Mandamus to seek to have the Police enforce the
homicide laws regarding the bodies reported at the Spokane River. Does this group of
individuals have standing? If they do not, what would they need to do in order
to have standing? Are the victims or victims' relatives at the river the only people
who have standing or "beneficial interest"?
Our case is similar to the hypothetical case above. The Police do not have the power
to decide who human beings are; nor do they have discretionary power to decide not to
enforce the homicide laws; nor do they have discretionary power to decide which laws
they will enforce. Their duty is ministerial, and we are asking the court to compel them
to perform this ministerial duty of enforcing the homicide laws, in equal measure to all
other homicide law enforcements, as required by the Fourteenth Amendment. "We the
People" have standing under the laws, including the Constitution, to protect the lives of
other people from unlawful homicide.
RESPONSE TO MOTION TO DISMISS, Page 2

Page 108
C. We find nothing in the Mandamus law which precludes the Police from enforcing the
homicide laws. This is what the Mandamus law is designed to do, lito compel the
performance of an act", such as the enforcement of the homicide laws, "which the law
especially enjoins as a duty resulting from an office ... ", such as the Police Department.
The cases we use for justification in our ADDENDUM are cases of Mandamus or
Certiorari. We find no exclusion for Ifcriminallaws" either in the Mandamus law, our
cases, or in the cases presented by the City/Police.
Our PETITION is for a Writ to compel the Police to enforce the homicide laws, which
includes the manslaughter laws. We do not "seek a writ against all abortions". We do
not argue that they be "generally enforced". We have argued that the fI Spokane Police
Department enforce the homicide laws .... as they would in any other type of unlawful
homicide investigation ..... "(PETITION, first paragraph). By this we mean that the police
be compelled to enforce the homicide laws in all locations equally(Fourteenth
Amendment). Nor have we sought to "compel a general course of conduct". As relates
here to C. and also to A. above, the PETITION indicates the "precise thing to be done"--
enforce the homicide laws-as the Police are doing this and have been doing this for
many years. Walker v. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994}(see [3J).
In regards to the City/Police citation of, State ex. Rei. Beardslee v. Landes, we are not
asking the court to "oversee performance of such duties", as the court does not oversee
the equal performance of any other duties related to the enforcement of the homicide
laws.
The decision in State ex. ReI. Hawes v. Brewer, that the City/Police cite, relies upon the
"exercise of discretion". We have no argument with the City/Police on this point. We
agree that the Police have no discretion in enforcing the homicide laws equally. Our
argument which is made in all of our documents is that they do exercise discretion,
which they do not have the power to exercise.
Summary
The City/Police argue in their conclusion that "mandamus is not available as a basis to challenge
the constitutionality of government action or inaction". We have shown in our ADDENDUM
and other Pleadings that Mandamus is available and has been successfully used in such cases.
The question of fact that we raise: Who is a human being/person?', can be compared to the
question raised in Brown v. Board a/Education a/Topeka, 347 U.s. 483 (1954), What is
segregation?' _./'We come then to the question presented: does segregation of children in
public schools solely on the basis of race, even though the physical facilities and other
"tangible" factors may be equal, deprive the children of the minority group of equal
RESPONSE TO MOTION TO DISMISS, Page 3

Page 109
educational opportunities? We believe that it does."
Plessy v. Ferguson, 163 U.S. 537 (1896) authorized segregation, on the basis of race, under the
term "separate but equal" for more than fifty years. Roe v. Wade has authorized homicide, on
the basis of physical development, for over thirty-eight years under the term 'abortion' and
"We need not resolve ... when life begins ... ". It has deprived children who are alive, but not yet
born, of "equal protection". The unanimous Brown v. Board of Education decision rejected the
scientific basis for segregation, based on race, that existed at the time of Plessy v. Ferguson.
The City/Police argue that the abortion laws take precedence over Washington State's
Homicide/manslaughter laws, the Law of Mandamus, the Declaration of Independence and the
Constitution, including the Ninth, Tenth and Fourteenth Amendments.
This City/Police argument violates the Supreme Court decision, Cooper v. Aaron, 358 U.S. 1
(1958)(in ADDENDUM), which upheld Brown v. Board of Education. This Court's unanimous
opinion states, "The historic phrase 'a government of laws and not of men' epitomizes the
distinguishing character of our political society ..... He {John Adams} was expressing the aim of
those who, with him, framed the Declaration of Independence and founded the Republic."
Ifthe Police can choose which laws to enforce and can define who human beings are, we no
longer have 'a government of laws', but a 'government of men'. The Police do not have the
legal authority to do either.
Based on this RESPONSE, our other Pleadings, the law, previous legal cases and on rational
argument, we ask that this Motion to Dismiss be denied.
RESPONSE TO MOTION TO DISMISS, Page 4

Page 110
Lawrence Cronin
~ ~
-6ouglas -Turner
'I""' day of October, 2011.
Lmr. Cw-t.; ,/ofqfl L . . J ~
Virginia Cronin r Richard Hanson
~ ~
Michael Walters
i
L---..

Page 111
p,BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 :: Volume 347 :: L. Page 1 of 14

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BROWN V. BOARD OF EDUCATION OF
TOPEKA, 347 U. S. 483 (1954)
Case Preview
u.s. Supreme Court
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Brown v. Board of Education of Topeka
Argued December 9,1952
Reargued December 8, 1953
Decided May 17, 1954*
APPEAL FROM THE UNIJED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Syllabus
http://supreme.justia,com/usl347/483/case.html 10/10/2011

Page 112
, ,BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 :: Volume 347 :: 1... Page 2 of 14
Segregation of white and Negro children in the public schools of a State solely on the basis of race,
pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal
protection of the laws guaranteed by the Fourteenth Amendment - even though the physical facilities
and other "tangible" factors of white and Negro schools may be equal. Pp. 347 U. S. 486-496.
(a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on public
education. Pp. 347 U. S 489-490.
(b) The question presented in these cases must be determined not on the basis of conditions existing
when the Fourteenth Amendment was adopted, but in the light of the full development of public
education and its present place in American life throughout the Nation. Pp. 347 tJ. S. 492-493.
(c) \Vhere a State has undertaken to provide an opportunity for an education in its public schools, such
an opportunity is a right which must be made available to all on equal teIDIS. P. 347 U. S. 493.
(d) Segregation of children in public schools solely on the basis of race deprives children of the
minority group of equal educational opportunities, even though the physical facilities and other
"tangible" factors may be equal. Pp. 347 U. S. 493-494.
(e) The "separate but equal" doctrine adopted in Pless), v. Ferguson. 163 U S 537, has no place in the
field of public education. P. 347 U. S. 495.
Page 347 U. S. 484
(f) The cases are restored to the docket for further argument on specified questions relating to the
forms ofthe decrees. Pp. 347 U. S. 495-496.
Page 347 U. S. 486
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are
premised on different facts and different local conditions, but a common legal question justifies their
consideration together in this consolidated opinion. [Footnote 1]
Page 347 U. S. 487
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the
courts in obtaining admission to the public schools of their community on a nonsegregated basis. In
each instance,
Page 347 U. S. 488
they had been denied admission to schools attended by white children under laws requiring or
pemlitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the
equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the
Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called
"separate but equal" doctrine announced by this Court in Pless), v. Fer.fJsoll, 163 U S. 537. Under that
doctrine, equality of treatment is accorded when the races are provided substantially equal facilities,
even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware
adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of
their superiority to the Negro schools.
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, ,BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 :: Volume 347 :: 1... Page 3 of 14
The plaintiffs contend that segregated public schools are not" equal" and cannot be made II equal, II and
that hence they are deprived of the equal protection of the laws. Because of the obvious importance of
the question presented, the Court took jurisdiction. [Iootnote 21 Argument was heard in the 1952
Tenn, and reargument was heard this Term on certain questions propounded by the Court. [footnote
1]
Page 347 U. S. 489
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth
Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress,
ratification by the states, then-existing practices in racial segregation, and the views of proponents and
opponents of the Amendment. This discussion and our own investigation convince us that, although
these sources cast some light, it is not enough to resolve the problem with which we are faced. At
best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among "all persons born or naturalized in the United
States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the
Amendments and wished them to have the most limited effect. What others in Congress and the state
legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history with respect to
segregated schools is the status of public education at that time. [Iootnote 4] In the South, the
movement toward free common schools, supported
Page 347 U. S. 490
by general taxation, had not yet taken hold. Education of white children was largely in the hands of
private groups. Education of Negroes was almost nonexistent, and practically all of the race were
illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast,
many Negroes have achieved outstanding success in the arts and sciences, as well as in the business
and professional world. It is true that public school education at the time of the Amendment had
advanced further in the North, but the effect of the Amendment on Northern States was generally
ignored in the congressional debates. Even in the North, the conditions of public education did not
approximate those existing today. The curriculum was usually ungraded schools were
common in rural the school term was but three months a year in many states, and compulsory
school attendance was virtually unknown. As a consequence, it is not surprising that there should be
so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its
adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro
race. [Footnote 5] The doctrine of
Page 347 U. S. 491
"separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v.
Ferb71IS01l, supra, involving not education but transportation. [Eootnote 6] American courts have since
labored with the doctrine for over half a century. In this Court, there have been six cases involving the
If separate but equal II doctrine in the field of public education. [E oomote 7] In Cumming v. COUlIly
Board 175 U. S. 528, and Gong LllnJ v. Rice. 275 U S. 78, the validity of the doctrine
itself was not challenged. [Footnote 8] In more recent cases, all on the graduate school
Page 347 U. S. 492
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. ,BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 :: Volume 347 :: 1... Page 4 of 14
level, inequality was found in that specific benefits enjoyed by white students were denied to Negro
students of the same educational qualifications. AfissOllri ex reI. Gaines v. Canada, 305 U. S. 337;
Sipuel v. Oklahoma, 332 U S. ,S'weaft v. Painter, 339 U. S. 629; NfcLaurill v. Oklahoma State
Regents, 339 U. S 637. In none of these cases was it necessary to reexamine the doctrine to grant
relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on
the question whether v. Ferguson should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here, unlike Sweall v. Painler, there are
findings below that the Negro and white schools involved have been equalized, or are being
equalized., with respect to buildings, curricula, qualifications and salaries of teachers, and other
"tangible" factors. [Footnote 9] Our decision, therefore, cannot tum on merely a comparison of these
tangible factors in the Negro and white schools involved in each of the cases. We must look instead to
the effect of segregation itself on public education.
In approaching this problem, we cannot tum the clock back to 1868, when the Amendment was
adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in
the light of its full development and its present place in American life throughout
Page 347 U. S. 493
the Nation. Only in this way can it be determined if segregation in public schools deprives these
plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local governments. Compulsory
school attendance laws and the great expenditures for education both demonstrate our recognition of
the importance of education to our democratic society. It is required in the performance of our most
basic public responsibilities, even service in the armed forces. It is the very foundation of good
citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected to succeed in life ifhe is denied the
opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a
right which must be made available to all on equal terms.
We come then to the question presented: does segregation of children in public schools solely on the
basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the
children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide
them equal educational opportunities, this Court relied in large part on "those qualities which are
incapable of objective measurement but which make for greatness in a law school." In McLaurin v.
Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate
school be treated like all other students, again resorted to intangible considerations: " ... his ability to
study, to engage in discussions and exchange views with other students, and, in general, to learn his
profession. II
Page 347 U. S. 494
Such considerations apply with added force to children in grade and high schools. To separate them
from others of similar age and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts and minds in a way unlikely
ever to be undone. The effect of this separation on their educational opportunities was well stated by a
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BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 :: Volume 347 :: 1... Page 5 of 14
finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro
plaintiffs:
"Segregation of white and colored children in public schools has a detrimental effect upon the colored
children. The impact is greater when it has the sanction of the law, for the policy of separating the
races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects
the motivation of a child to leam. Segregation with the sanction of law, therefore, has a tendency to
[retard] the educational and mental development of negro children and to deprive them of some of the
benet its they would receive in a racial[ly] integrated school system. [Footnote 10]"
Whatever may have been the extent of psychological knowledge at the time of Plessy l'. Ferguson,
this finding is amply supported by modem authority. [Footnote II] Any language
Page 347 U. S. 495
in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place.
Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others
similarly situated for whom the actions have been brought are, by reason of the segregation
complained ot: deprived of the equal protection of the laws guaranteed by the Fourteenth
Amendment. This disposition makes unnecessary any discussion whether such segregation also
violates the Due Process Clause of the Fourteenth Amendment. [EQQL1lote 12]
Because these are class actions, because of the wide applicability of this decision, and because of the
great variety of local conditions, the formulation of decrees in these cases presents problems of
considerable complexity. On reargument, the consideration of appropriate relief was necessarily
subordinated to the primary question -- the constitutionality of segregation in public education. We
have now announced that such segregation is a denial of the equal protection of the laws. In order that
we may have the full assistance of the parties in fommlating decrees, the cases will be restored to the
docket, and the parties are requested to present further argument on Questions 4 and 5 previously
propounded by the Court for the reargument this Term. [Footnote 13] The Attorney General
Page 347 U. S. 496
of the United States is again invited to participate. The Attomeys General of the states requiring or
permitting segregation in public education wiB also be pernlitted to appear as amici curiae upon
requestto do so by September 15, 1954, and submission of briefs by October 1, 1954, [Footnote 14]
It is so ordered
* Together with No.2, Briggs et al v. Elliott et al., on appeal from the United States District Court
for the Eastern District of South Carolina, argued December 9-10, 1952, reargued December 7-8,
1953; No.4, Davis et al. v. County School Board of Prince Edward County, Virginia, et al., on appeal
from the United States District Court for the Eastern District of Virginia, argued December 10, 1952,
reargued December 7-8, 1953, and No. 10, Gebhart et al. v. Belton et al., on certiorari to the Supreme
Court of Delaware, argued December 11, 1952, reargued December 9, 1953.
[Eootnote I]
In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary
school age residing in Topeka. They brought this action in the United States District Court for the
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District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require,
cities of more than 15,000 population to maintain separate school facilities for Negro and white
students. Kan.Gen.Stat. 72-1724 (1949). Pursuant to that authority, the Topeka Board of Education
elected to establish segregated elementary schools. Other public schools in the community, however,
are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.c.
2281 and 2284, found that segregation in public education has a detrimental effect upon Negro
children, but denied relief on the ground that the Negro and white schools were substantially equal
with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98
F.Supp. 797. The case is here on direct appeal under 28 U.S.c. 1253.
In the South Carolina case, Briggs 1'. Elliott, the plaintiffs are Negro children of both elementary and
high school age residing in Clarendon County They brought this action in the United States District
Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state
constitution and statutOlY code which require the segregation of Negroes and whites in public schools.
S.C.Const., Art, XI, 7; S.CCode 5377 (1 942} The three-judge District Court, convened under 28
U.S.C. 2281 and 2284, denied the requested relief The court found that the Negro schools were
inferior to the white schools, and ordered the detendants to begin immediately to equalize the
facilities. But the court sustained the validity of the contested provisions and denied the plaintitls
admission to the white schools during the equalization progranl. 98 F,Supp_ 529 This Court vacated
the District Court's judgment and remanded the case for the purpose of obtaining the court's views on
a report filed by the defendants concerning the progress made in the equalization program. 342 U. S.
350. On remand, the District Court found that substantial equality had been achieved except for
buildings and that the defendants were proceeding to rectify this inequality as welL 103 F.Supp. 920.
The case is again here on direct appeal under 28 U.S.C 1253.
In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school
age residing in Prince Edward County. They brought this action in the United States District Court for
the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and
statutory code which require the segregation of Negroes and whites in public schools. Va.Const.,
140; Va.Code 22-221 (1950). The three-judge District Court, convened under 28 U.S.c. 2281
and 2284, denied the requested relief The court found the Negro school inferior in physical plant,
curricula, and transportation, and ordered the defendants forthwith to provide substantially equal
curricula and transportation and to "proceed with all reasonable diligence and dispatch to remove" the
inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the
contested provisions and denied the plaintiffs admission to the white schools during the equalization
program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.c. 1253.
In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high
school age residing in New Castle County. They brought this action in the Delaware Court of
Chancery to enjoin enforcement of provisions in the state constitution and statutory code which
require the segregation of Negroes and whites in public schools. DeLConst, Art. X, 2;
DeL Rev. Code 2631 (1935). The Chancellor gave judgment for the plaintiffs and ordered their
immediate admission to schools previously attended only by white children, on the ground that the
Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular
activities, physical plant, and time and distance involved in travel. 87 A2d 862. The Chancellor also
found that segregation itself results in an inferior education for Negro children (see note 1 () but
did not rest his decision on that ground. Id at 865. The Chancellor's decree was affirmed by the
Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a
modification of the decree after equalization of the Negro and white schools had been accomplished.
91 A2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the
immediate admission of the Negro plaintifis to the white schools, applied to this Court for certiorari.
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The writ was granted, 344 U.S. 891. The plaintiffs, who were successful below, did not submit a cross
-petition.
[Footnote 2]
344 lL S. 1, 141,891.
[Footnote 3]
345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae.
[Iootnote 4]
F or a general study of the development of public education prior to the Amendment, see Butts and
Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, Public Education
in the United States (1934 ed.), cc. ll-Xn. School practices current at the time of the adoption of the
Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, supra, at
288-339,408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. EX.Doc.
No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed
substantially the same pattern in both the North and the South, the development in the South did not
begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for
the somewhat slower development in the South (e.g., the rural character ofthe South and the different
regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408-423. In the
country as a whole, but particularly in the South, the War virtually stopped all progress in public
education.ld at 427-428. The low status of Negro education in all sections of the country, both
before and immediately after the War, is described in Beale, A History of Freedom of Teaching in
American Schools (1941), 112-132, 175-195. Compulsory school attendance laws were not generally
adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such
laws were in force in all the states. Cubberley, supra, at 563-565.
[F ootnote 5]
Slaughter-House Cases, 16 Wall. 36, 83 LT. S 67-72 (1873); Strallder v. West Virginia. 100 U. S 303,
100 U. S. 307-308 (1880):
"It ordains that no State shall deprive any person oflife, liberty, or property, without due process of
law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but
declaring that the law in the States shall be the same for the black as for the white; that all persons,
whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored
race, for whose protection the amendment was primarily designed, that no discrimination shall be
made against them by law because of their color? The words of the amendment, it is true, are
prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to
the colored race -- the right to exemption from unfriendly legislation against them distinctively as
colored -- exemption from legal discriminations, implying inferiority in civil society, lessening the
security of their enjoyment of the rights which others enjoy, and discriminations which are steps
towards reducing them to the condition of a subject race. "
See also Virginia v. Rives, 100 ll. S. 313, 100 U. S. 318 (1880); Ex parte Virginia, 100 U. S. 339, 100
U S. 344-345 (1880)
[Footnote 6]
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The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 (1850), upholding
school segregation against attack as being violative of a state constitutional guarantee of equality.
Segregation in Boston public schools was eliminated in 1855. Mass.Acts 1855, c. 256. But elsewhere
in the North, segregation in public education has persisted in some communities until recent years. It
is apparent that such segregation has long been a nationwide problem, not merely one of sectional
concern.
[Footnote 7]
See also Berea College 1'. Kentucky. 711 U. S. 45 (1908).
[Footnote 8]
In the Cummin case, Negro taxpayers sought an injunction requiring the defendant school board to
discontinue the operation of a high school for white children until the board resumed operation of a
high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese
descent, contended only that state authorities had misapplied the doctrine by classifying him with
Negro children and requiring him to attend a Negro school.
[Footnote 9]
In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797,
798. In the South Carolina case, the court below found that the defendants were proceeding "promptly
and in good faith to comply with the court's decree." 103 F.Supp. 920, 921. In the Virginia case, the
court below noted that the equalization program was already "afoot and progressing" (103 F.Supp.
337,341); since then, we have been advised, in the Virginia Attorney General's brief on reargument,
that the program has now been completed. In the Delaware case, the court below similarly noted that
the state's equalization program was well underway. 91 A.2d 137, 149.
!Iootnote 10]
A similar finding was made in the Delaware case:
"I conclude from the testimony that, in our Delaware society, State-imposed segregation in education
itself results in the Negro children, as a class, receiving educational opportunities which are
substantially inferior to those available to white children otherwise similarly situated."
87 A.2d 862,865.
[Footnote] 1]
K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White
House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making
(1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation A Survey of
Social Science Opinion, 26 J.PsychoJ. 259 (1948); Chein, What are the Psychological Effects of
Segregation Under Conditions of Equal Facilities?, 3 Int.I.Opinion and Attitude Res. 229 (1949);
Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949),44-48;
Frazier, The Negro in the United States (1949),674-681. And see generally Myrdal, An American
Dilemma (1944).
[Footnote 12]
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See Bolling v. Sh011Je. post, p. 3470, S. 497, concerning the Due Process Clause of the Fifth
Amendment.
"4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment"
"(a) would a decree necessarily follow providing that, within the limits set by normal geographic
school districting, Negro children should forthwith be admitted to schools of their choice, or"
neb) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be
brought about from existing segregated systems to a system not based on color distinctions?"
"5. On the assumption on which questions 4(a) and (b) are based, and assuming further thatthis Court
will exercise its equity powers to the end described in question 4(b),"
"ea) should this Court formulate detailed decrees in these cases;"
neb) if so, what specific issues should the decrees reach;1I
"(e) should this Court appoint a special master to hear evidence with a view to recommending specific
terms for such decrees;"
n(d) should this Court remand to the courts of first instance with directions to frame decrees in these
cases and, if so, what general directions should the decrees of this Court include and what procedures
should the courts of first instance follow in arriving at the specific terms of more detailed decrees?"
[Footnote 14]
See Rule 42, Revised Rules of this Court (effective July 1, 1954).
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602 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602, 62 P.3d 470
person on the street and engage in consensual conversation.
Not every encounter with a law enforcement officer is a
seizure. I also concur with the majority's conclusion that
the cocaine and the pipe must be suppressed. Our state
constitution requires an actual and valid arrest before the
search incident to arrest exception applies. Majority at 587.
Sergeant WElst's attentive police work and sharp instincts
are commendable. But our constitution does not allow an
officer to search and seize without a warrant unless the
officer is authorized by one of our common law exceptions to
the warrant requirement, If we are to adhere to our
precedents, we must suppress evidence seized under no
valid exception. I would affirm the trial court's decision.
ALEXANDER, C.J., and SANDERS and OWENS, JJ., concur with
CHAMBERS, J.
[No. 71847-4. En Bane.)
Argued September 19, 2002. Decided January 30, 2003.
RETIRED PUBLIC EMPLOYEES COUNCIL OF WASHING'l'ON, ET AL.,
Appellants, v. JOHN F. CHARLES, as Director of the
Department of Retirem.ent Systems, Respondent.
[1] Judgment - Summary Judgment - Review - Role of Appel.
late COUl't. An appellate court reviewing a summary judgment
engages in the same inquiry as the trial court, 'I'he appellate court
detel'mine!! whether there exist genuine issues of matel'ial fact and
whether the moving party is entitled to judgment as a matter oflaw,
The court considers the facts of the case in the light most favol'able
to the nonmoving party. The court will affirm the judgment if
reasonable pel'Sons could reach only one conclusion from' the facts,
[2] Judgment - Summary Judgment - Burden on Nonmoving
Party - Averment of Specific Facts - Necessity. A P9.1ty
defending against a motion for summary judgment may not rely on
speculation, argumentative assertions, 01' having its affidavits con-
sidered at face value to establish the existence of a genuine issue of
material fnct.
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 603
148 Wn.2d 602, 62 P.3d 470
[3] Appeal- Record on Appeal- Supplementation -Additional
Evidence - Effect on Decision Under Review. An uppellate
court will not accept additional evidence on appeal under RAP
9.11(a) if the additional evidence would not change the decision
under review.
[4] Pensions - Public Employees - Action To Preserve or In-
crease - Mandamus - Standing - Statutory Provisions -
Relationship. Under former RCW 41.45.050(3) (1998), the mem
bel'S of a public employees' retirement system may seek mandamus
to compel the Director of the Department of Retirement Systems to
enSU1'e that employers are contributing to the system fund at a
lawfull'ate if the test fOl' standing to seek mandamus tll1der chapter
7.16 ROW is satisfied,
[5] Statutes - Constructioll - Acts Relating to Same Subject -
In General. A court should read together statutes relating to the
same subject matter, to ascertain legislative purpose and to main-
tain the integrity of each,
[6] Mandamus - Standing - Beneftcial Interest - What
Constitutes. To have standing to seek mandamus to compel an
official action, a party must be beneficially interested In the action,
A patty is beneficially interested in an action if the pudy has an
interest beyond that shared in common with oLhel' citizens,
[7] Pensions - PubHc Employees - Aotion To Preserve 01' In-
orease - Mandamus - Standing - System Members -
Beneficial Interest. 'rhe members of a public employees' retire-
ment system have a beneficial interest in having employers contrib
ute to the system fund at iii lawful rata, and such intel'est is sufficient
to cOllfer standing on the membel's to seek mandamus under chaptel'
7.16 ROW to compel the Director of the Department of Retirement
Systems to ensure that employers are malting the proper contribu-
tions.
[8] Pensions - Public Employees - Nature of Funds - Trust.
The Public Employees' Ret.irement System Plan 1 fund is not. a trust,
and the Director of tho Department of Retil'ement Systems is neither
a trustee nor Ii fiducia:t'Y of the fund.
[9] Pensions - Teachers Retirement - Natul'e of Funds - Trust.
The Teachers' Retirement System Plan 1 fund is not a tI'ust, and the
Director of the Department of Retirement Systems is neither a
trustee nor a fiduciary of the fund.
[10] Fiduciaries - Fiducial'Y Relati.onship - What COllstitutes
- In General. A fid1.lciaty relationship between parties does not
exist unless (1) one party has SUpBriOl' kl10wlellge and (2) that party
uses the superior knowledge to induce reliallce by the other party.
[11] Fiduciaries - Fiducia1'Y Duty - Question of Law Qr Fact.
The existence of a fiduciary cluty is a question oflaw.


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604 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602,62 P.3d 470
[12] Statutes - Validity - Pl'esumption - Burden of Proof -
Degree of Proof. A statute is presumed to be constitutional. A party
seeking to overcome the preswnptiol1 has the heavy burden of
proving that the statute is unconstitutional beyond a reasonable
doubt.
[13] Constitutional Law - Contracts - Impairment - Constitu-
tional Provisions - How Imposed - EX8ctn<!SS - Degree. The
Canst. art, I, 23 prohibition against the legislative impairment of
contracts is not absolute and should not be imposed with literal
exactness.
[14) Constitutional Law - Contracts - Impairment - PubliC!
Contracts - Constitutional Sorutiny. Legislative interferences
with the government's own contracts are subject to more stringent
examination for a violation of the Const. art. I, 23 prohibition
ag'aillst the legislative impairment of contracts than are interfer-
ences with private contracts.
[15] Constitutional Law - Contl'acts - Illlpairmeut - Public
Contracts - Test. The following three-pal't test is used to deter-
mine if there has been a legislative impairment of a public contract:
(1) does a contractual relationship exist? (2) does the legislation
substantially impair the contractual relationship? and (3) if there is
a substantial impaiI'meut, is it reasonable and necessary to serve a
legitimate public purpose'? The first prong of the test requires an
initial determination of whether a contract exists.
(16) Pensions - Public Employees - Contractual Expectation-
Actuarial Soulldlless - Funding Mechanisms. The members of
a public employees' retirement system have a vested contract1.1al
right to the systematic funding of the retirement system to maintain
its actuarial soundness.
[17] Constitutional Law - Contracts - Impairment - Degree of
Impairment - Substantial Impairment - Test. For pu.rposes of
the Canst. art. I, 23 prohibition against the legislative impairment
of contracts, a contract is not substantially impaired by legislative
action unlesB the legislation alters tho contract's terms, imposes new
contractual conditions, or lessens the contract's value.
[18] Pensions - Public Employees - Contractual Expectation-
Actuarial Soundness - Impairment - Reduction of Em-
ployer Contribution Rate. Absent sufficient evidence that the
public employees' retirement sysLem fund's actuarialsuundness will
be harmed by a lower employer contribution rate, legislation that
reduces the employer contribution rate to the fund does not substan-
tially impair the vested contractuall'ight of system membel's to the
systematic funding of the retirement system and does not violate the
Const. art.. I, 23 prohibition against the legislative impairment of
contracts.
[19] Pensions - Public Employees - Nature of Funds - Created
by Statute - SU8ctlptibility to Amendment. Public employees'
Jan. 2003 RE'l'IRED PUB. EMPLOYEES v. CHARLES 605
148 Wn.2d 602, 62 P.3d 470
pension systems and their funding mechanisms are creatures of
statute subject to legislative amendment, limited only by constitu-
tional cont;train{;s,
[20] Statutes - Subjects and Titles of Acts - Constitutional
Limitation - Elements. Const. art. II, 19 sets forth two distinct
requirements: (1) that Ii bill embrace 110 more than one subject (the
single subject rulo) and (2) that the subject of a bill be expressed in
its title (the subject-in-tit.le rule).
[21] Stntutes - Subjec:ts and Titles of Acts - Construction -
Liberal Construction. Conat, art. II, 19, which requires that a
bill embrace no more than olle snbjr-lct. and that the subject of a bill
be expressed in its title, is liberally construod itl favor of upholding
the validity of legislation.
[22] Statutes - Subjects and Titles of Acts - Constitutional
Limitation - Pluposes. The purposes of the Const. l11't. n, 19
requirements that a bill embrace no more than one subject and that
the subject of a bill be expressed in its titlo aro to prevent "Iogroll-
ing"-the practice of obtaining the enactment of unpopula.r legisla-
tion by attaching it to other necessary 01' desirable legislation-and
toO enFmrB that the membel's of the legislature and $e public Ell'e
gellerally aware of what is contained in proposed new laws,
[28] Statutes - Subjects aud Titles of Acts - S1.\bject in Title -
Detail - Degree. The Const. art. II, 19 requirement that the
subject of a bill be expressed in its title does not require a legislative
title to be an index to the contents of the legislation; nor must the
title give the details contained in the legislation.
[24] Statutes - Subjects and Titles of Acts - Subject in Title -
ApJ)ropriations Bills. For pm'poso of the Const. art. II, 19
requirement that the subject of a bill be expressed in its title, the
legislnttu'o is aftbl'ded greater latitude ill titling appropriations bills
th811 in titling other bills.
[25] Statutes - Subjects Bud Titles of Acts - Subject in Title -
Test. A legislative title complies with the Const. art, II, 19
requirement that the s\lbject of a bill be expressed in its title if the
title gives notice that WOl.lld lead to an inquiry into the body of the
legislation or that indicates to an illquh'ing mind the scope and
purpose of the law.
[26] Statutes - Subjects and Titles of Ads - Subject in Title -
Constl"l1ctiol1- "Subject". For purposes of the Const. art. II, 19
requirement thaL the subject, of a bill be expressed in its title, a
nalTOW construction of the term "subject" is disfavored.
[27] Statutes - S1.1bjects and Titles of Acts - Subject in Title -
Construction - Constitutional Construction. Any reasonable
doubts as to whether the title oflegislation satisfies the Const. art.
II, 19 requirement that the subject of Ii bill be expressed in its title


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606
RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602,62 P3d 470
are l'esolved ill favor of upholding the constitutionality of the
legislation.
[28] State - Legislature - Appropriation - Scope. Canst. art. II,
19 prohibits appropriations bills from defining rights or altering
existing laws.
[29] State - Legislature - Approprintion - Validity - Stlbstan.
tive Law - Factors. In determining whether a part of a budget bill
constitutes substantive law prohibited by Const. art. II, 19, a court
may consider whether the policy expressed in the part (1) has been
treated in a separate substantive bill in the past, (2) extends beyond
the two-year time period of the budget, and (3) defines rights or
eligibility for services.
[30] Pensions - Public Employees - Structure of Plans -
Funding Mechanisms - Statutory Provisions - Validity -
Substantive Rights in Appropriations Bill. Sections 720, 902,
905, and 906 of Laws of 2000, 2d Sp. Sess., ch. 1 (Engrossed Houso
Bill 2487), a supplemental budget law, which lowered the (!ontribu-
tion rates employers must make to the Public Employees' Retire-
ment System Plan 1 fund and to t h ~ ~ Teachers' RHtiremont System
Plan 1 fund, du llot constitute substantive law and are not invalid
under Const. art. II, 19, which prohibits appropl'opriations bills
from defining rights 01' altering existing laws.
[81] Statutes - Amendment - Recitation of Amended Section-
Purpose. Canst. art. II, 37, under which no act may be revised or
amended by mere reference to its title and requiring that legislation
amending an act 01' section thereof include the full text of the (let or
section amended, is designed to protect the legislature Bnd the
public from fraud and deception. Its pl1rpose is not to tra.mmel or
hamper the legislature in the enactlnellt of laws.
[32) Statutes - Amendment - Recitation of Amended Section -
Scope of Requh'ement - Legislation Complete in Itself - In
General. Const. art. II, 37, undel' which no act lllay be revised or
amended by mere reference to its title and requiring that legislation
amending an a(.1; 01' section thereof include the full text of the act 01'
section amended, is not implicated by legislation that is complete in
itself, that is independent ofpriol' acts. alld that stands alone on the
particular subject it addresses. An act is amendatol'Y, rather thall
complete, if it changes the scope or effect of a priol' statuto. Const.
art. II, 37 does not necessarily apply in all cases where a new act,
in effect, amends another; where the llew law is independent, and no
further search is required to know the law that the new act covers,
the new act does not come within the scope of Canst. art. II, 37.
Although nearly every piece of general legislation will modify a prior
statute, either directly 01' indirectly, to a certain extent, such result
does not necessarily constituto a violation of Const. art. II, 37.
[33] Statutes -- Amendment -- Recitation of Amended Section--
Test. In determining whether legislation violates Canst. art. II, 37,
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 607
148 Wn.2d 602, 62 P.3d 470
under which no act may he revised 0[' amended by mere reference to
its title and requiring that legislation amending an act or section
thereof in.clude the full text of the act 01' section amended, Ii COUlt
must detel'mine (1) whether the legislation is so complete in itself
that the scope of the rights clcat.ed or aff-ected by it clln be
ascertained without referring to any other stntute or enactment and
(2) whether a determinatioll of the scope of thl rights under the
existing statutes would be made en'OneoUEI by the legislation.
[84} PensiollS - Public Employees - Structure of Plans -
Flmding Mechanisms - Statutory Provisions - Validity -
Amendatory Legislation. Sections 720, 902, 905, Ilnd 906 of Luws
of 2000, 2d Sp. Sess., ch. 1 (Engrossed House Bill 2487), Ii supple-
mental budget law, which lowered the contribution rates employers
must make to the Public Employees' Retil'ement System Plan 1 fund
and to the Teachers' Retirement System Plan 1 fund, do not violate
the Const. alt. II, 37 prohibition against revising or amending an
act by mere referellce to its title or the req\urement that legislation
amending an act 01' section thereofil1clude the utH text orthe act or
sadion amended.
FAIRHURST, J., did not participate in the disposition of this case.
Nature of Action: OrganizatiOJls representing retired
public employees and school teachers and several indi
vidual employees and teachers who are cunently employed
sought a writ of mandamus to compel the director of the
Department of Retirement Systems to collect employer
contributions to the Public Employees' Retu.'ement System
Plan 1 fund and to the Teachers' Retirement System Plan 1
fund at the statutory rates and by the statutory methods
that existed prior to the time legislation was ellacted in
2000 that specified a lower rate. The plaintiffs alleged that
the 2000 legislation was invalid.
Superior Court: The Superior Court for Thurston
County, No. 01-2-00060-5, Wm. Thomas McPhee, J., on
October 16, 2001, dismissed the plaintiffs' claim for a writ of
mandamus and granted a summary judgment in favor of
the defendant.
Supreme COUl"t: Holding that the respective retirement
funds are not trusts, that the director is not a trustee or
fiduciary of the funds, and that the 2000 legislation is
constitutional, the court affirms the judgment.


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608 RETIRED PUB. EMPLOYEES v. CHARJ,ES Jan. 2003
148 Wn.2d 602, 62 P.3d 470
Donald E. Clocksin, for appellants.
Christine O. Gregoire, Attorney General, and Spencer W
Daniels, Assistant, for respondent.
Harriet K. Strasberg on behalf of Washington Education
Association, amicus curiae.
LEXIS Publishing Resem'ch References
2003 Wash. LEXIS 70
IRELAND, J. - Organizations representing retired public
employees and teachers, as well as individual current state
employees and teachers, petitioned for a writ of mandamus
against the director of the Department of Retirement Sys-
tems (Director). They alleged the Director unlawfully col-
lected employer contributions to the retirement system at
the lower rate adopted by the legislature in Engrossed
House Bill (EHB) 2487 (Laws of2000, 2d Sp. Sess., ch, 1) in
contravention of the statutorily required rates and meth-
odology. The organizations and individuals appeal the tI'ial
court's decision dismissing their petition for mandamus and
granting summary judgment in favor of the Director. Find-
ing that the Public Employees Retirement System (PERS 1)
and Teacher's Retirement System (TRS 1) funds are not
trusts and that the Director is not considered a trustee or
fiduciary of those funds, and that EHB 2487 is constitu-
tional, we affirm the trial court's dismissal of appellants'
petition for mal1damus and its grant of summary judgment
in favor of the Director.
1. FACTS
A. Background of the Retirement System
This case involves a challenge to the contribution rates
for two of the State's retirement plans: PERS 1 and TRS 1.
Appellants, plaintiffs below, are individual retired and
current state employees and teachers, as well as two
organizations representing retired state employees aud
Jan. 2003 RE'rIRED PUB. EMPLOYEES v. CHARLES 609
148 Wn.2d 602, 62 P.od 470
teachers, the Retired Public Employees Council of Wash-
ington (RPEC) and the Washington State School Retirees'
Association. PERS 1 covers public employees who became
members before October 1, 1977; TRS 1 covers school
teachers who became members before October 1, 1977.
RCW 41.40.010(33); RCW 41.32.010(38). Both retirement
systems are administered by the Department of Retirement
Systems (DRS).
Under both systems, members and employers make c o n ~
tributions to the pIau, which are then invested. Any invest-
ment earnings are redeposited in the systems. III PERS 1,
members pay a contribution rate, which is fixed by statute
independently of the employer contribution rate for that
plan. See RCW 41.40.330(1). The contribution rates for
employees and employers under the TRS 1 system operate
in the same way as for PERS 1. See ROW 41.32.035, .042.
Upon retirement, PERS 1 and TRS 1 provide retirement
benefits to their members. Retirees of both plans 110 longer
pay contributions to their respective systems. Retirees'
benefits are not affected by the contributions that continue
after retirement.
1
Employer contribution rates are adjusted to make up the
difference between the estimated amount the State must
pay for present and future benefits and the sum of employee
contributions and investment returns as described below.
B. The Rate Setting Process Generally
The required employer contributions are derived from a
three-step process. First, an outside actuary reviews and
proposes suggested contribution rates based on the follow-
ing assumptions: (a) growth in system membership, (b)
growth in salaries, (c) growth in inflation, and (d) invest-
1 A possible exception involves adc1l.tim1Bl benefits provided w\del' chaptal' 41.31
lWW as "gain-sharing." PERS 1 and TRS 1 retirees al'e allowed a potential share
in any "extraordinary" gaills on the investment of pension fund assets. ReW
41.31.010 provides that the annual cost ufliving illcrease for PERS 1 and TRS 1
retirees is to be "incl'eased by Lhe gain-sharing illcl'I'lase amoullt, if allY." If the
"compound average of investment retU1'llS" over the previous foul' fiscal years
exceeds 10 percent, then a portion of the funds in thel'etil'ement plans is
multiplied by the compotmd average, resulting in the gain-sharing increase that
will be disbursed to retirees. ReW 41.31.020(1)(b).


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610 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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ment rate of return. See former RCW 41.45.030(2) (1995),
.060(2) (2000).
Second, the Pension Funding Work Group serves to help
the Pension Funding Council (PFC) in its role, including
help in: (a) reviewing actuarial valuations, (b) reviewing
economic assumptions, and (c) "any other purpose which
may assist the [PFC]." RCW 41..45.120(3). Recommenda-
tions from affected employee and employer groups are
actively sought during the "work group process." RCW
41.45.120(4). Open public meetings are to be held on those
recommendations. [d.
Third, the PFO adopts and may change the employer
contribution rates, consistent with the assumptions, every
two years (even-numbered years). Former ROW 41.45-
.060(2)(a)-(c). See also RCW 41.45.100 (creating the Pension
Funding Council). The PFC notifies directors of the Office of
Financial Management and DRS of'the state and employer
contribution rates adopted by the council. Former RCW
41.45.060(6). The Director collects the mtes adopted by the
council for the dates set by statute. Former RCW
41.45.060(7).
C. rrhe Rate Setting in this Case
Based on the results of the 1997 actuarial valuation, the
state actuary recommended a decrease in the employel'
contribution rates for the 19992001 biennium for both the
PERS and TRS plans. The recommendation was to decrease
the rates from 7.32 percent to 4.36 percent for PERS and
from 11.75 percent to 8.38 percent for TRS. The PFC
adopted the reduced contribution rates recommended by
the state actuary. The legislature implemented those rates
for the 1999-2001 biennium and scheduled the rates to
expire June 30, 2001. See former RCW 41.45.0603(2)(a), (b)
(2000); LAWS OF 1999, ch. 309, 907(1)(a), (b). Appellants do
not challenge the implementation of these rates.
In 1998, the state actuary performed another annual
actuarial valuation. III April 2000, the legislature enacted
EHB 2487, a supplemental budget bill for the remainder of
Ja.n.2003 RETIRED PUB. EMPLOYEES v. CHARLES 611
148 Wn.2d 602, 62 P.3d 470
the 1999-2001 biennium. The bill further lowered the
employer contribution rates, midbiennium. LAWS OF 2000,
2d Sp. Sess., ch. 1, 906. ll'or PERS, the rates were lowered
an additional 0.78 percent. The TRS rates were lowered an
additional 2.35 percent. Compare rates adopted by PFC
(Clerk's Papers (CP) at 109) with former RCW 41-
.45.0603(2)(a), (b). The stated reason for reducing the rates
was that the 1998 valuation from the state actuary deter-
mined that the funding goals expressed in former RCW
41.45.010 (1998) could still be met using lower employer
contribution rates, primarily because ofinvestment returns
on the pension funds that were higher than anticipated.
Former RCW 41.45.0603(1). Originally, the rates adopted
by the PFC were to extend from July 1, 1999 through June
30, 2001 for PERS and from September 1, 1999 through
June 30, 2001 for 'l'RS. LAWS OF 1999, eh. 309, 907. EHB
2487 changed these effective dates, malting the former
contribution rates set by the PFC ineffective as of April 30,
2000, for both plans. LAWS OF 2000, 2d Sp. Sess., ch. 1, 902.
It then established that the new rates were to take effect on
May 1, 2000. Id. at 906. The Director began collecting the
new reduced rates provided in EHB 2487 between May 1,
2000 and the end of the 1999-2001 biennium. The Director's
implementation of the new rates is being challenged in this
action.
II. PROCEDURAL HISTORY
The plaintiffs (Retirees and Employees) filed their peti-
tion for a writ of mandamus against a state officer in
October 2000 seeking jurisdiction in this court. The petition
was transferred to the Thurston County Superior Court.
The trial court dismissed the petition, denied the Retirees'
and Employees' motion for summary judgment, and
gTanted the State's cross motion for summary judgment.
This court accepted dil'ect review.


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612 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602,62 P.3d 470
III. ISSUES
Should the Director of the Department of Retirement
Systems collect the employer contribution rates originally
set for the 1999-2001 biennium or collect the reduced rates
set by the legislature midbiennium?
Before deciding the above question, this court must
determine the following preliminary issues:
1. Whether former ReW 41.45.050(3) (1998) confers
standing to members of the retirement systems in-
dependently of standing as a beneficially interested
party under the mandamus statute.
2. Whether the PERS 1 and TRS 1 are properly char-
acterized as trusts.
3. Whether the Directol' of the Department of Retire-
ment Systems is a trustee of the retirement funds or
a fiduciary to the members aud retirees of the sys-
tems.
4. Whether the appropriations bill, Engrossed House
Bill 2487, violates article I, section 23 or article II,
sections 19 and 37 of the Washington Constitution.
IV. ANALYSIS
A. Standard of Review
[1, 2] When reviewing an ord.er of summary judgment,
the appellate court engages in the same inquiry as the trial
court. Bowles v. Dep't of Ret. Sys., 121 Wn.2d 52, 62, 847
P.2d 440 (1993). The appellate court determines whether
genuine issues of material fact exist and whether the
moving party is entitled to judgment as a matter oflaw. Id.;
CR 56(c). The court considers the facts in the light most
favorable to the nonmoving party. Bowles, 121 Wn.2d at 62.
The nonmoving party may not rely on speculation, argu-
mentative assertions that unresolved factual issues re-
main, or on having its affidavits considered at face value.
Seven Gables Corp. v. MGMIUA Entm't Co., 106 Wn.2d 1,
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES
613
148 Wn.2d 602, 62 P.3d 470
13, 721 P.2d 1 (1986). The court should grant the motion
only if reasonable persons could reach but Olle conclusion.
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030
(1982).
B. Additional Evidence on Review
RAP 9.11 allows all appellate court to take additional
evidence on review if:
(1) additional proof offaets is needed to fairly resolve the issues
on review, (2) the additional evidence would probably change
the decision being reviewed, (3) it is equitable to excuse a
party's failure to present the evidence to the trial court, (4) the
remedy available to a party through post judgment motions in
the trial court is inadequate or unnecessarily expensive, (5) the
appellate court remedy of gl'anting a new trial is inadequate or
unnecessari}y expensive, and (6) it would be inequitable to
decide the case solely on the evidence alrea.dy taken in the trial
court.
RAP 9.11(a). The Director has moved this court to accept
the affidavit of the state actuary, which explains that the
criteria for a gain-sharing increase in pension benefits
would not have been met despite the lowered contribution
rates. This information was unavailable for the trial court
because the final information for the investment returns for
fiscal year 2001 was not available. Aff. of Gerald Allard
(Mar. 11, 2002).
[3] While the information in the affidavit is illustrative,
Retirees' and Employees' standing in this case, under either
the mandamus standard or the more relaxed public interest
standard, is not wholly tied to whether their concern for
decreased gain-sharing is realistic or not. For this reason,
the additional evidence would not change the decision of
whether to grant Retirees and Employees standing in this
case. The Director's motion to receive additional evidence
on review is denied. The standing issue is discussed further,
below.
C. Mandamus-Chapter 7.16 RCW
A court may grant a writ of mandamus to "compel the
performance of an act which the law especially enjoins as a


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614 RE1'mED PUB. EMPLOYEES v. CHARLES Jan. 2003
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duty resulting from an office .... " ROW 7.16.160. A writ is
appropriately issued in cases where there is not a "plain,
speedy and adequate remedy in the ordinary course oflaw,"
upon affidavit of a beneficially interested party. ROW
7.16.170.
D. Preliminary Issues
1. Standing
[4, 5] Former RCW 41.45.050(3) provides that "[a]ny
member of an affected retirement system may, by manda-
mus or other appropriate proceeding, require the transfer
and payment of funds .... " The trial court concluded that
this statutory section provides a right of mandamus only to
compel transfer and payment, not calculation and billing.
Accordingly, the trial court held that the retirees did not
have standing under this section because it does not pro-
vide a right against the departrnent for improper or inad-
equate billing. Retirees and Employees contend that the
trial court took a 'Itortured interpretation" of former ROW
41.45.050(3). Br. of Appellant at 13. Appellants argue that
the law provides express obligations for the proper opera-
tion of the retirement system: "the director must bill, the
employers must pay and the director must collect if the
proper payments are not made." I'd. at 13-14. The process of
collection requires the Director to assure that employers
are contributing the correct amounts to the retirement
systems and that those amounts are transferred into the
retirement fund. Appellants argue that the trial court's
interpretation contravenes the legislature's intent.
The Director counters that former RCW 41.45.050(3) does
not provide an additional basis for standing. Members of
the retirement system must, to compel transfer and pay-
ment pursuant to former ROW 41.45.050(3), still meet the
requirements of a mandamus action. Subsection three
reads:
(3) The department shall bill employers ... USlllg the com-
bined rates established in [former] RCW 41.45.060 and
[former) 41.45,070 regardless of the level of pension funding
I
J'an.2003 RETIRED PUB. EMPLOYEES v, CHARLES 615
148 Wn.2d 602,62 P.3d 470
provided in the biennial budget. Any member of an affected
retirement system may, by mandamus or other apPl'op1'iate
proceeding, require the transfer and payment of funds as
directed in this section.
Former ROW 41.45.050(3) (emphasis added).
The wording of the statute is clear in that it allows
members to compel the Director's action through manda-
mus. The mandamus statute is provided in chapter 7.16
RCW. The court should read the sections of two statutes
relating to the same subject matter together to ascertain
legislative pl.lrpose and to maintain the integrity of both
statutes. Bea.ch v. Bd. of Adjustment, 73 Wn.2d 343, 346,
438 P.2d 617 (1968). Former RCW 41.45.050(3) provides
members with an opportunity to compel the transfer and
payment of retirement funds if they qualify for a writ of
mandamus. '1'he Director is correct 'that the test for stand
ing in this case is provided in chapter 7.16 ROWand former
RCW 41.45.050(3) merely clarifies that members must use
a mandamus proceeding to compel transfer and payment.
a. Nature of Pension Rights
This court has held that members and retirees of retire-
ment systems have celtain pension rights that are contrac-
tual in nature. BakenhuB v. City of Seattle, 48 Wn.2d 695,
701,296 P.2d 536 (1956). It has been held that retirees have
vested contractual pension rights to "a retirement system
achtarially designed through systematic funding to meet
present and future pension liabilities." Weaver v. Evans, 80
Wn.2cl 461, 478, 495 P.2cl 639 (1972). These rights will be
discussed more fully later in this opinion. It appears that
the Director is arguing that, while pension rights may be
contractual in nature, 110ne is infringed upon by EHB 2487.
Thus, he contends that Retirees and Employees are not
automatically granted standing by virtue of their contract
rights and are not, in turn, beneficially interested on any
other grounds. Retirees and Employees maintain that they
have certain pension rights that are contractual in nature
and they are thereby beneficially interested in any changes
in the funding system that may infringe upon those rights.


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616 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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b. Beneficially Interested
[6] The parties disagree as to whether the Retirees and
Employees are beneficially interested. An individual has
standing to bring an action for mandamus, and is therefore
considered to be beneficially interested, ifhe has an interest
in the action beyond that shared in cornmon with other
citizens. State ex rel. Lay v. Simpson, 173 Wash. 512,
512-13, 23 P.2d 886 (1933).
The Director asserts that the Retirees and Employees are
not beneficially interested in the contribution rates charged
to PERS and TRS employers since employer contribution
rates do not increase employee contributions, nor do they
affect the present or future benefits received by retirees.
Moreover, retirees no longer pay any contributions. It is
true that in the PERS 1 and TRS 1 plans, members pay a
fixed contribution rate that does not relate to the employer
contribution rates for those plans. The Director points out
that PERS 1 and TRS 1 are defmed benefit plans, which
means that benefits are not proportional to the employee
contributions and that employer contributions must be set
at whatever amount is necessary to fund the bcnefits
defined in the statute. See Bowles, 121 Wn.2d at 71; see also
Koster v. City of Davenport, 183 F.3d 762, 767 (8th Oir.
1999) ("[A] defined benefit plan entitles the members to a
predetermined distribution upon retirement and to an
actuarially sound plan to ensure that the plan is adeq'uately
funded to meet those distribution requirements. It does not
entitle them to any use of the contributions other than to
ensure the above entitlements are met."). The Director
further contends that Retirees and Employees have failed
to show that the system was made actuarially unsound by
EHB 2487 or that they were adversely affected by the
lowered contribution rates.
The Retirees and Employees argue that they are benefi-
cially interested because they have a vested interest in the
process for funding pensions. Specifically, they claim they
have interests in seeing (1) there is enough money in the
retirement system to pay their benefits, (2) that the existing
Jan. 2003 RE'l'IRED PUB. EMPLOYEES v. CHARLES 617
148 Wn.2d 602, 62 P.3d 470
unfunded pension liability is paid off, and (3) that sufficient
assets are available to provide benefit increases without
imposing the burden of those increases on taxpayers. See
generally former ROW 41.45.010(1), (2), (4) (1998) (provid-
ing the legislature's intent with regard to funding the
retirement systems). They argue that ERB 2487 risks
violating the legislature's goals for the funding of the
system. Retirees Frlnd Employees argued to the trial court
that they need not show that the lowered rates render the
retirement system actuarially UllSOlLlld. They would re-
quire the Director to follow the unamended statutory pro-
cess to determine whether or not the lowered contribution
rates will render the system actuarially unsound.
Retirees and Employees rely on Weaver. In Weaver, this
court issued a writ of mandamus where the governor had
reduced the funds appropriated for TRS to a point where
the general fund, from which retirement benefits are to be
paid, would be insufficiently funded to honor retirement
benefits due and payable for the remainder of the biennium.
Weaver, 80 Wn.2d at 478. Retirees and Employees note that
the dissent in that case believed that appellants had not
shown that the governor's action rendered the system
actuarially unsound, but perceive that the majority of the
court did not think it necessary to demonstrate unsound-
ness.ld. at 47980 (Neill, J., dissenting). The dissent noted
that there were more than enough funds in the Pension
Reserve Fund to fulfill payment of the due and payable
benefits. It appears that the dissenting justice believed that
the system could not be actuarially unsound if there were
sufficient monies in the reserve fund. See id. at 481 (Neill,
J., dissenting). Retirees and Employees believe that under
Weave,. they are not required to show actuarial unsound-
ness.
As the Director argues, the governor's actions in Weaver
resulted in a situation where the retirement system could
not Jin811ce benefit payments in the manner envisioned by
the legislature (i.e., payments made out of the general
fund). Thus, in that case, the system was in fact actuarially


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618 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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unsound in that the fund from which benefits were to be
paid was overdrawn and would not be able to ::finance the
benefits due and payable for the biennium. Moreover, the
situation was such that actual pension rights in the form of
benefits were implicated by the governor's action. The
Director cites cases from other jurisdictions that have
issued writs of mandamus only upon a showing from the
plaintiff that the change to the retirement system will
render the system actuarially unsound. 8ee Dombrowski v.
City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968)
(plaintiff was beneficially interested where actual and im-
mediate impairment of pension rights had been adduced);
Lee v. Mu.n. of Bethel ParI?, 156 Pa. Commw. 158, 626 A.2d
1260, 1264 (1993) (plaintiffs did not have standing where
they failed to allege any adverse impact the action at issue
would have on the soundness of the retirement plan).
A search of Washington cases has not revealed a def-
inition of actuarial soundness. Howevel', a footnote in
Dombrowski provides: "for a public retirement system,
actuarial soundness requires that the municipality contrib-
ute a sum of money each year sufficient to cover the 'normal
cost' for that year plus interest on the system's 'l.mfunded
accrued liability.'" 431 Pa. at 201 n.1 (summarizing the
findings of the trial court based on expert testimony).
Since this case is before this court on direct review of a
motion for summary judgment, there has been no expert
testimony on whether the lowered contribution rates ren-
der the system actuarially unsound. The state actuary has
attested by affidavit that his office has long performed
annual actuarial valuations of the four main public retire-
ment systems, two of which are PERS and TRS. The results
of these annual valuations are available to the public and
provide information to both the public and legislature
regarding the overall funding and financial status of the
retirement systems. These annual valuations are done
according to the same statutorily prescribed methods as the
biennial valuations. The state actuary explained that
"[sleveral factors may cause contribution rates to change,
Ja.n.2003 RETIRED PUB. EMPLOYEES v, CHARLES 619
148 Wn.2d 602, 62 P.3d 470
including investment return, number of members terminat-
ing employment, salary increases, number of retirements,
growth of membership, and benefit increases enacted by the
legislature." CP at 778-79. The PFC adopted the rates
calculated in the 1997 actuarial valuation for the 1999-2001
biennium. In 1998, as is customary, another actuarial
valuation was perfol'1lled using the same actuarial process
as the 1997 valuation, except that 1998 figures rather than
1997 figures were substituted for variables Buch as mem-
bership and value of assets. The contribution rates result-
ing from this 1998 valuation were those that were incorpo-
rated into EHB 2487. The state actuary concluded:
"[wlhile the rates in the 1998 valuation were not calcula.ted for
the purpose of replacing the rates that had been adopted by the
Pension Funding Council, the rates were calculated on the
same basis as the earlier rates and do represent amounts
needed to fund the retirement systems, taking into account the
changes that have since the 1997 valuation. No
reason exists which would make using the rates in the 1998
valuation improper, frnm an actuarial standpoint."
CP at 780 (Feb. 16, 2001 Aff.).
Retirees and Employees offer the opinion ofIra Summer2
who opines that the funding objectives in former chapter
41.45 RCW of benefit security, contribution consistency, and
benefit improvement are not met by setting rates based on
interim valuation results. Summer explains that benefit
security may be harmed by lowered contribution rates
because of the potential for lower investment earnings
on those contribution rates. Early changes in contribution
rates hinder an employer's ability to budget its contribu-
tions. Accordingly, the midbiennil.1m change brings the
system's stability and predictability into question. Summer
further asserts that the interim valuation undermines
investment policy by reducing the amount of money into the
2 Summer's extensive qualifications include serving as the actuary for the
Minnesota Teachers' Retirement Association and the employees' retil'ement asso-
ciations of various counties in California, He was also the auditing actuary to the
California Public Employees' Retirement System. He is currently the president of'
Public Pension Professionals,


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RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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retirement fund that the State Investment Board uses to
set its investment policy of the funds. Lastly, he believes
that the practice of asset smoothing on an annual basis,
rather than a biennial basis, is inconsistent with actuarial
methodology.
[7] Retirees and Employees couch their argument in
terms of potential for actuarial umlOundness and contraven-
tion of the legislature's goals in enacting the pension
funding statutes. The Director calls fur a showing of imme-
diate, rather than potential, actuarial unsoundness. For
purposes of standing under the mandamus statute, all that
must be shown is that the party has an interest in the
matter beyond that of other citizens. rl'he simplicity in this
standard compels the conclusion that Retirees and Employ-
ees have an interest, beyond that of other citizens, in
changes made to the retirement system. Retirees and
Employees have standing in this case.
2. Are PEHS and TRS Trusts?
Retirees and Employees contend that the PERS and 'l'RS
retirement systems are trusts and that the Director is a
trustee who owes Retirees and Employees the duties of a
fiduciary. They argue that each system has elements of a
trust: settlor, trustee, corpus, beneficiary, and trust instru
ment. 1'he trial comt disagreed, without discussion, in light
of two recent Court of Appeals decisions that had rejected
the proposition Retirees and EJrnployees now make. See
Retired Pub. Employees Council v. State, 104 Wn. App. 147,
16 P.3d 65, review denied, 143 Wn.2d 1023 (200l); Wash.
Fed'n of State Employees v. State, 107 Wn. App. 241, 26
P.Sd 1003 (2001). Both Court of Appeals cases cite and rely
upon this court's opinions in Bowles, and City of Marysville.
v. State, 101 Wn.2d 50, 676 P.2d 989 (1984). The trial court
concluded that both Bowles and Marysville had rejected the
characterization of PERS 1 as a trust. As a result, the trial
court held that the Director was entitled to summary
judgment 011 this issue.
In Bowles, the parties disagl'eed as to how DRS should
calculate lump StUll payments received by PERS 1 employ-
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 621
1118 Wn.2d 602,62 P.3d 470,
ees upon retirement for accrued vacation and sick leave.
Bowles, 121 Wu.2d at 56. One of the issues on appeal was
whether the statute of limitations had run. Id. at 78.
Despite a recent case's unequivocal holding that a three-
year statute of limitations applies to actions alleging breach
of state employee pension rights, the appellants argued
PERS 1 was a trust and that the three-year statute of
limitations did not apply. ld. at 79. This court rejected the
appellant's erroneous contentioll that PERS 1 was a trust,
citing Marysville, where this court held that employer
contributions were not held by the State as a trustee and
concluded that, in light of Marysville, this court could not
construe PERS 1 as a trust. Id.
In Retired Public Employees Council v. State, appellants
from the case at bar appealed the trial court's grant of
sl1mmaryjudgment in favor of the Director. 104 Wn.App. at
149. Retired Public Employees Council (RPEC) sought to
compel the Director to pay cost of living adjustments for the
years 1981 through 1995. The Director moved for summary
judgment on the basis that the statute of limitations was
three years and had expired. The court rejected RPEC's
argument that the three-year statute oflhnitations for oral
contracts did not apply because PERS 1 is a trust. ld. at
150. The Court of Appeals relied on Bowles, stating that
this court had "expressly 'rejected a characterization of the
PERS I fund as a trust.' " Id. at 151 (quoting Bowles, 121
Wn.2d at 79). RPEC also tried to distinguish Bowles and
argue its incorrectness, but the Court of Appeals found the
arguments tmpersuasive. Id.
[8-11] Retirees and Employees rely Oll
century cases that have referred to retirement boards as
trustees and stated that the retirement fund was a "special
fund, of a proprietary nature." State ex reZ. State Employees'
Ret. Bd. v. Yelle, 31 Wn.2d 87,11013,201 P.2d 172 (1948).
See also Naccamto v. Sullivan, 46 Wn.2d 67, 76, 278 P.2d
641 (1955) (stating that retirement board members "are
made trustees of the funds coming into their hands for the
benefit of the public employees who are members of the


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622 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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retirement system."). Both cases involved the investment of
pension fund assets and dealt with the duties of those
responsible for investing pension funds. Such is not the case
here. The State Investment Board is charged with invest"
ment of the pension funds. This State's case law, recent case
law in particular, has refused to characterize the retire
ment funds as trusts. The Director correctly distinguishes
and properly limits appellants' characterization of these
cases. Thus, we affirm the trial court's grant of summary
judgment denying the characterization of the PERS 1 and
TRS 1 funds as trusts.
3. Does the Director Owe Fiduciary Duties as a Trustee
or Fiduciary?
If the funds are not trusts, theu the Director may not be
characterized as a trustee of those funds. Retirees and
Employees argue in the alternative that the Director may
nonetheless be a fiduciary. They argue that his statutory
duties may be equated to fiduciary duties and that the
legislature intended this result :llllight of its grant of a right
to seek mandamus to compel transfer and payment of funds
as provided in former RCW 41.45.050(3). A fiduciary rela
tionship may be found when: (1) one party has superior
knowledge, and (2) that party uses that superior knowledge
to induce reliance by the party to whom a duty is owed.
Liebergesell I). Evans, 93 Wn.2d 881, 889-91, 613 P.2d 1170
(1980). Whether a duty exists is a question of law. Hansen
v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992). No
Washington cases have held that the Director of Retil'ement
Systems is a fiduciary to members and retirees of the
retirement systems. Moreover, as the Director al'gLles, Re-
tirees and Employees have not shown that the Director had
superior knowledge of the lowered contribution rates. See
Mazer v. U.s. Bank of' Wash., 72 Wn. App. 416, 426"27, 865
P.2d 536 (1994). EHB 2487 disclosed the lowered contribu-
tion rates as adopted by the legislature. This information
was readily available to Retirees and Employees. Second,
there is no showing that the Dire-ctol' somehow indicated to
Retirees and Employees that he would collect the rates
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 623
148 Wn.2d 602,62 P.3d 470
initially adopted by the PFC rather than the subsequent
new rates adopted by the legislature, thereby inducing
reliance on his assurances. In fact, prior to the 2000 act, the
Director notified Retirees and Employees of DRS's inten"
tion to "collect contribution rates in accordance with any
legislation ... passed by the Legislature [that] becomes
law." CP at 112. There is no statutory la.nguage referring to
the Director as a fiduciary that would clearly illustrate any
legislative intent to treat him as such. As the trial court
stated, "even when the evidence and inferences are viewed
in a light most favorable to [Retirees and Employees] there
is the complete absence of evidence to establish [their]
reliance on [the Director]." Retired Pub. Employees Council
of Wash. v. Charles, No. 012000605 (Thurston County
Super. Ct. Aug. 20, 2001). We affirm the trial court's
conclusion that, since the Director is not a trustee, nor is he
a fiduciary, the attendant duties associated with these roles
do not extend to him.
4. Does EHB 2487 Violate Appellants' Constitutional
Rights?
a. Article It Section 23
Were Appellants' Vested Contractual Rights Impaired?
Retirees and Employees assert they have a vested con"
tractual right in the process by which the retirement
system is funded and that this right is substantially im-
paired by the collection of lower employer contribution
rates.
[12] Prelilnillarily, a statute is presumed to be
tional, and the party seeking to overcome that presumption
must meet the heavy burden of proving unconstitutionality
beyond a reasonable doubt. Wash. Fed'n, of State Employees
v. State, 127 Wn.2d 544, 559-60, 901 P.2d 1028 (1995).
[13-15] Article I, section 23 of Washington's Constitution
provides that no law impairing the obligations of contracts
shall be passed. The prohibition against any impairment of
contracts is not absolute and should not be imposed with
literal exactness. Id. at 560-61. The State's impairment of


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its own contracts is subject to more stringent review l.mder
the contract clause than impairment of contracts between
private parties. Id. (quoting Tyrpak v. Daniels, 124 Wn.2d
146, 874 P.2d 1874 (1994) (citing Allied Structural
Steel Co. v. SpannaLts, 438 U.S. 234, 244 n.15, 98 S. Ct.
2716, 57 L. Ed. 2d 727 (1978). The three-part test to
determine if there has been an impairment of a public
contract is: (1) does a contractual relationship exist, (2) does
the legislation substantially impair the contractual
tiOllShip, and (3) if there is substantial impairment, is it
reasonable and necessary to serve a legitimate public
purpose. Tyrpak, 124 Wn.2d at 152.
Under the first prollg, we must initially determine
whether a contract exists. Pension provisions are part of the
compensation for services and therefore become part of the
employment contract. Bakenhus, 48 Wn.2d at 698-99. As a
consequence, at least some pension rights are contractual
in nature. We must thei) ascertain whether the pension
rights claimed by Retirees and Employees to have been
impaired are in fact terms of the employment contract.
Retirees and Employees cite cases that have held the
following to be vested contractual rights protected from
impairment: size of a pension, right to a mandatory retire-
ment age, right to a practice of including lump sum pay-
ments in the calculation of retirement beneflts, right to a
refund of retirement contributions, and right to add to a
pension by using accrued vacation pay. See Bakenhus, 48
Wn.2d at 701j Eagan v. Spellman, 90 Wn.2d 248, 258, 581
P.2d 1038 (1978); Wash. Ass'n of County Officials v. Wash.
Pub. Employees'Ret. Sys. Bd., 89 Wn.2d 729, 733, 575 P.2d
230 (1978); Horowitz v. Dep't of Ret. Sys., 96 Wn.2d 468,
472-73,635 P.2d 1078 (1981); Wash. Fed'n of State Employ-
ees v. State, 98 Wn.2d 677, 679, 658 P.2d 634 (1983). The
Director argues the cases challenging modifications to re-
tirement plans based on impairment of contract have im-
pinged on the promised benefits upon retirement or involve
changes having a direct monetary effect on members and
retirees. The one case that does not is Weaver v. Evans, the
facts of which have been recited above.
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 625
148 Wn.2d 602, 62 P.3d 470
[16] The Weaver court, in holding that the governor's
actions would result in an insufficiency of funds needed to
pay promised benefits, stated that members and retirees
have a vested contractual pension right "tp a retirement
system actuarially designed through systematic funding to
meet present and future pension liabilities." Weaver, 80
Wn.2d at 478. Retirees and Employees take a broad view of
this statement, suggesting that the collection of the rates
made by the legislature in EHB 2487 contravenes their
pension rights to the systematic funding of the retirement
system to maintain its fiscal soundness. The Director advo-
cates for a narrower, contextual interpretation of Weaver,
arguing that since the governor's action in Weaver would
have resulted in insufficient funds to pay anticipated ben-
efits, in a sense Weaver also dealt with a modification to the
retirement plan that posed a direct threat to benefits
already promised members and retirees. Here, he argues,
the lower employer contribution rates had no analogous
effect on either of the plans' members or retirees. However,
the Weaver court prefaced its finding of this vested contrac-
tual right with the acknowledgment that "the legislature
[had} over a span of years indicated a deep concern with the
actuarial soundness of the retirement system, and that
concern ... culminated in the express adoption of a
atic method of funding to ultimately attain the desired
soundness .... " Weaver', 80 Wn.2d at 478. The same could
be said about the 1989 changes to the retirement funding
system establishing the current system. We therefore agree
with Retirees and Employees that they do have vested
contractual rights to the systematic funding of the retire-
ment system to maintain actuarial soundness.
[17, 18] The second prong requires a determination of
whether the legislation substantially impairs the contrac-
tual relationship. A contract is impaired by a statute which
alters its terms, imposes new conditions, or lessens its
value. Wash. Fed'n, 127 Wn.2d at 563. Modifications must
bear some material relation to the theory of a pension
system and its successful operation. Weaver, 80 Wn.2d at


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626 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
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476. Retirees and Employees argue that they have contrac-
tual rights in the process offunding the retirement system,
generally, and that they are harmed by the Director's
failure to comply with the pre amended funding statutes.
They argue that lower contribution rates could reduce
earnings on pension assets as well as create a reduced
likelihood the plan could finance future benefit improve-
ments. Retirees and Employees assert that the State In-
vestment Board reports that the reduced contribution rates
are contributing to a negative cash flow in the Commingled
Trust Fund and that, as a result of continued negative cash
flows, future asset allocations and investment policies may
be impacted. They assert that l'etirees "will likely" receive
lower gain-sharing increases and that "prematurely reduc-
ing contribution rates will reduce the amount paid on the
pension systems' past debts ... thereby postponing the
amortization of those [debts)." Br. of Appellants at 32-33
(emphasis added).
However, there is no indication of how likely these harms
are or that the lower contribution rates prevent the s u c ~
cessful operation of the pension system. Appellant organi-
zations wrote a letter to the executive director of the State
Investment Board reqnesting a response as to, among other
things, why the Commingled Trust Fund was experiencing
a negative cash flow. The executive director's response
explained that a cash flow report of March 16, 2000 pointed
to "several likely factors contributing to a projected nega-
tive cash flow trend." CP at 474 (emphasis added). One of
five factors was contribution rate reductions. This letter
contained several qualifiers to which the executive director
alerted appellant organizations. The letter cautioned to
"keep in mind the cash flow report provided projected cash
flow trends, reflecting the net effect of all retirement funds
for a given fiscal year." ld. at 473 (emphasis added). Also,
"[i]n preparing the report, the [State Investment Board]
w[as] interested in trends and the estimated net effect, and
did not have a need to quantify each factor separately or
precisely." Id. at 474.
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 627
148 Wn.2d 602, 62 P.3d 470
The letter discussed above undercuts Retirees' and E m ~
ployees' argument that the system may be impacted by the
lowered contribution rates. There is no showing of how
much the lower contribution rates would le88.en the value of
the retirement system, if at all. If the Retirees' and Em-
ployees' rights are in the funding process of an actuarially
and fiscally sOtmd retirement system, then EHB 2487
cannot be said to alter the terms of the contract since there
is no indication that the lowered contribution rates render
the system actu81'ially unsound. While Retirees and Em-
ployees maintain that they need not show a likelihood of
harm, to allow them to claim that their contractual rights
have been substantially impaired based on their assertions
alone would open the door for any future plaintiff to bring a
successful suit against the Director without a.ny showing
that harm is even likely to result. Consequently, appellants
have not met their burden of proof that a question of fact
exists as to whether the system is actuarially unsound, i.e.,
the modifications made in EHB 2487 have not been shown
to affect Retirees' and Employees' vested pension right.
There being no evidence of substantial impairment, it is
unnecessary to discuss the third prong.
[19] On the issue of contract impairment, the Director
also argues that the legislature has plenary power to alter
and amend the retirement system, s\.lbject only to the
constraints of the constitution. See Luders v. City of Spo-
kane, 57 Wn.2d 162, 164, 356 P.2d 331 (1960). In contrast,
Retirees and Employees cite no authority for their conten-
tion that the Director should ignore the legislature's enact-
ment of a law that is constitutional. See Wash. Fed'n, 127
Wn.2d at 558 (a statute is presumed constitutional). Appel
lants would have the pension funding process be static for
the biennium. But, the funding statutes are merely pieces
of legislation, not constitutional provisions, so there is no
limitation on the legislature to make changes, save the
constitution. The legislature may therefore amend portions
of the funding process, contrary to appellants' contention.
As discussed above, Retirees and Employees have not been


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628 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602, 62 P.3d 470
able to show the lowered contribution rates will hinder the
retirement system such that the benefits promised them
will not be payable. We affirm the trial court's decision to
grant summary judgment in favor of the Director on this
issue.
b. Article II, Section 19
Does the Title of ERB 2487 Embrace More Than One
Subject?
[2027] i. Compliance Generally
Article II, section 19 of Washington's Constitution pro-
vides that no bill may cover more than on8 Bubject and that
the subj ect of every bill must be expressed in the title. It
thus contains two prohibitions: (1) no bill shall embrace
more than one subject (single subject rule), and (2) that
subject shall be expressed in the title of the bill (subject in
title rule). State ex rel. Wash. Toll Bridge Auth. v. yelle, 32
Wn.2d 13, 23, 200 P.2d 467 (1948). Section 19 is to be
liberally construed in favor of the legislation. Wash. Fed'n,
127 Wn.2d at 555. section has a dual purpose: (1) to
prevent "logrolling," or pushing legislation through by
taching it to other necessary or desirable legislation, and (2)
to assure that the members of the legislature and public are
generally aware of what is contained in proposed new laws.
.Flanders v. Morris, 88 Wn.2d 183, 187, 558 P.2d 769 (1977).
A title need not be an index to the contents of the bill, nor
must it give the details contained in the bill. Wash. Fed'n,
127 Wn.2d at 555. Greater latitude must be given the
legislature in titling appropriations bills than any other
because their purpose is to allocate state funds to such a
great number of state needs. Flanders, 88 Wn.2d at 188. A
title complies if it gives notice that would lead to inquiry
into the body ofthe or indicate to an inquiring mind the
scope and purpose of the law. [d. A narrow construction of
the term "sub,ject" in section 19 has never been favored.
Wash. Fed'n, 127 Wn.2:d at 556. Any reasonable doubts are
resolved in favor of constitutionality. Id.
The title of EHB 2487 is "An Act Relating to fiscal
matters; amending RCW 41.45.060 .... " LAWS OF 2000, 2d
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES
629
148 Wn.2d 602, 62 P.3d 470
Sp. Sess., ch. 1. The title continues to list those sections,
both codified and uncodified, that are amended. Sections
720,902,905, and 906 are at issue here. Section 720 adds
an uncodified section reflecting the lower contribution rates
based 011 the 1998 actuarial valuation. Section 902 amends
the contribution rate effective dates provided in Laws of
1999, ch. 309, 907. Section 905 amends former RCW
41.45.060, as well as Laws of2000, ch. 247, 504, such that,
for the remainder of the biennium, the rates adopted by the
PFC will be effective for the period designated in section
902. Section 906 adds a new section to fonner chapter 41.45
RCW setting the new rates for May 1, 2000 to June 30,
2001.
ii. Does EHB 2487 Include Substantive Law?
Retirees and Employees contend thai; appropriations bills
may 110t amend existing law, that the sections ofEHB 2487,
above, are stlbstantive law, and are thereby inappropriate
for incorporation in an appropriations bill.
[28, 29] An appropriations bill violates section 19 if it
defines rights or alters existing laws. Servo Employees Int'l
Union, Local 6 v. Superintendent a/' Pub. Instruction, 104
Wn.2d 344, 351, 705 P.2d 776 (1985). Budget bills may not
contain substantive law "because a budget bill, by its
nature, appropriates funds for a finite time period-two
years-while substantive law establishes public policy on a
more durable basis." Wash. State Legislature v. State, 139
Wn.2d 129, 145, 985 P.2d 353 (1999). Washington State
Legislature provided three indicators that a part of a budget
bill may be substantive law: (1) it has been treated in a
separate substantive bill in the past, (2) its duration ex-
tends beyond the two-year time period of the budget, and
(3) the policy defines rights or eligibility for services. Id. at
147. In the same case, this court refused to adopt a
"categorical definition of 'substantive law' " for purposes of
determining whether an appropriations bill violates the
single subject rule. Id.
In Flanders, this court held that an appropriations bill
that altered the eligibiHty requirement for l'eceipt of public


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assistance funds was substantive law and therefore vio-
lated section 19. 88 Wn.2d at 184-85, 188. In that case,
there was clear evidence that there had been two prior.
unsuccessful attempts to create the same limitation in
eligibility. Id. at 186. Tho court concluded that this was a
law "which could not pass on its own merit, under a proper
title, [and] became law by being slipped into a 45-page
appropriations bill." Id.
Here, Retirees and Employees assert that the legislature
had previously rejected the same contribution rate changes.
The Senate Ways and Means Committee added a new
section 508 to Senate Bill 6530 pl'oviding employer contri-
bution rates similar to those later enacted in EHB 24B7
with the same effective dates. S.B. 6530, 56th Leg., Reg.
Sess. (Wash. 2000). Senate Bill 6530 passed the Senate but
section 508 was removed by the House. Contrary to what
Retirees and Employees claim, this past treatment of the
contribution rates in S.B. 6530 does not indicate prior
legislative determination on the issue of lowered. contribu-
tion rates for PERS 1 and TRS 1 and does not rise to the
level of conclusiveness in Flanders. There are any number
of reasons why section 508 was deleted from S.B. 6530.
Retirees and Employees have failed to show beyond a
reasonable doubt that sections 720, 902, 905, and 906
contain substantive law that was incapable of passing on its
own merits.
The second indicator is that the section of the budget bill
extends beyond the two-year time period of the budget.
Retirees and Employees contend that the lowering of the
contribution rates "willlihely impact the retirement system
far beyond the end of the biennium." Br. of Appellants at 40
(emphasis added). They again recite the speculative harms
that may come to the retirement system as a result of the
lowered contribution rates that they relied on earlier. The
Director aptly corrects the Retirees' and Employees' focus:
in addition to the asserted "impacts" being speculative and
unproven, the appropriate inquiry is whether the changes
extend beyond the time period of the budget, not
whether there may be "impacts" beyond the budget period.
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 631
148 Wn.2d 602,62 p.ad 470
The third indicator is that the bill defines rights or
eligibility for services. Retirees and Employees reiterate
their opinion that they have pension rights in the nature of
a "non-political rate-setting process with pe/ill' review, inde-
pendent expertise, mandatory interest group involvement,
and proper advance notice," Br. of Appellants at 40. They
contend that ERB 2487 changes the rate-setting process,
the systematic method of funding discussed in Weaver, and
is therefore substantive legislation. As discussed above, a
more reasonable reading of Weaver is that it recognized
vested pension rights "to a retirement system actuarially
designed through systematic funding to meet present and
future pellSion liabilities." Weaver, 80 Wn.2d at 478. Retir-
ees and Employees therefore do not have specific pension
rights in the physical system and individual statutes in
effect when they began work. Rather, their right is to a
system that will fulfill the State's promise to meet present
and future pension liabilities.
[30] While this list of indicia of substantiveness is not
exhaustive, Retirees and Employees offer 110 other bases to
conclude the changes in ERB 2487 are substantive in
nature. We conclude that the title does not violate article II,
section 19.
c. Article II, Section 37
Does EHB 2487 Revise or Amend the Pension Funding
Statutes by Mere Reference in its Title?
[31] Article II, section 37 of Washington's Constitution
provides that "[n]o act shall eve}' be revised or amended by
mere reference to its title, but the act revised or the section
amended. shall be set forth at full length." Section 37 is
designed to protect the legislature and public from fraud
and deception; "not to trammel or hamper the legislature in
the enactment of laws." Spokane Grain & Fuel Co. v.
Lyttaker, 59 Wash. 76, 82, 109 P. 316 (1910).
[32, 33] An act is exempt from section 37 requirements if
the act is complete, independent of prior acts, and stands
alone on the particular subject of which it treats. Amalgam-


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632 RETIRED PUB. EMPLOYEES v. CHARLES .Jan. 2003
148 Wn.2d 602, 62 P.3d 470
ated Transit Union Local 587 v. State, 142 Wn.2d 183, 246,
11 P.3d 762 (2000). An act is amendatory, rather than
complete, if it changes the scope or effect of a prior statute,
State ex rel. Arnold v. Mitchell, 55 Wash. 513, 518, 104 P.
791 (1909), although nearly evory piece of generallegisla-
tion will modifY a prior statute to a certain extent, either
directly or indirectly. Holzman v. City of Spolw.ne, 91 Wash.
418, 426, 157 P. 1086 (1916). This alone, however, does not
inescapably lead to a violation of section 37. ld.
'1'hero is a two-part test for violation of section 37: (1) the
court must detennine whether the bill is such a complete
act that the scope of the rights created or affected by the bill
can be ascertained without referring to any other statute 01'
enactment; and (2) whethel' a determination of the scope of
the rights under the existing statutes would be made
erroneous by the bill. Wash. Educ. Ass'n v. Sta.te, 97 Wn.2d
899, 903, 652 P.2d 1347 (1982) (quoting Wash. EdllC. Ass'n
v. State, 93 Wn.2d 37, 40-41, 60
L
l P,2d 950 (1980) (citing
Naccarato v. Sullivan, 46 Wn.2d 67,74,278 P.2d 641 (1955);
Weyerhaeu.ser Co. 1). King County, 91 Wn.2cl 721, 731, 592
P.2clll08 (1979))). The Amalgamated court has cautioned,
however, that "[a] later enactment which is a complete act
may very well change prior acts and [yet still be] exempt
from the requirement of article II, section 37." Amalgam-
ated, 142 Wn.2d at 251-52. This court continued, "rsection
37] does not apply in aU cases where a new act in effect,
amends another[,] [W]here the new law is independent, and
no further search is required to Imow the law which the new
act covers, the new act does not come within [section 37]."
[d. at 252. The question in the second prong cannot be
answered in isolation because complete acts may well result
in a reader of an existing statute being unaware there is
new law on the subject. ld. at 253. It is therefore not enough
to ask whether one reading an existing statute would be
unaware that a new enactment changes it. ld.
'l'he Director points to the clarifications of the section
37 test set forth by this com't in Amalgamated, contending
that sections 902 and 906 of EHB 2487, changing the
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 633
148 Wn.2d 602, 62 P.3d 470
effective dates and contribution rates, are complete in
themselves and do not violate section 37. ERB 2487 clearly
states its effect on the contribut.ion rates and the differ-
ences in the effective periods for the rates adopted by the
PFC and those adopted by the legislature are "readily
ascertained by referring to sequential sections of [EHB
2487]." Dr, ofResp't at 49. He asserts that the act explained
that the reason for lowering the contribution rates was that
the more Cl.lrrent actuarial valuation showed the Sta.te
could meet the funding goals of former chapter 41.45 RCW
with lower employer contribution rates. The Director ar-
gues that "[n]o legislator or interested citizen reading the
act could reasonably have been misled as to [ERB 2487's]
impact on the existing sections of [former] ReW 41.45." ld.
He points out that anyone referencing former ReW 41-
.45.060 would see that the legislature had modified the
initial effective period of the rates adopted by the PFC, and
that one must reference EHB 2487 for the new effective
period.
Conversely, Retirees and Employees argue that a person
reailing ERB 2487 cannot ascertain how the act has altered
the authority of the PFC, the Director's duties, or the
members' pension rights. First, Retirees and Employees
contend that sections 720 and 906(1) remove the authority
of the PFC to set contribution rates without setting out the
former provisions in full. The former statutory provisions
they claim to be altered by sections 720 and 906(1) are
former RCW 41.45.060(2) and ,100(2). However, section
906(1) is clear it is adding a new section to former chapter
41.45 RCW. Moreover, a legislator or citizen referencing
former ReW 41.45.060(2) would be directed to Laws of
2000, 2d Sp. Sess., ch. 1, 902, which in turn reports the
changed effective periods.
Second, Retirees and Employees contend that section
906(7) suspends the statutes providing a 30-day notice of
contribution changes without setting forth the previous
sections, former RCW 41.26.450 (1996) and former ReW
41.40.650 (1989), in full. This suspension, however, cloes not


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148 Wn.2d 602, 62 P.3d 470
aim to confuse legislators or interested citizens. The statu-
tory provisions are clearly referenced in section 906(7).
Finally, Retirees and Employees assert that section 905
sets out former RCW 41.45.060 in full but does not show
any changes to the Director's responsibility to collect those
rates adopted by the c o ~ m c i l in former RCW 41.45.060(7).
This contention relies 011 the argument previously raised by
Retirees and Employees that the Director should ignore the
rates adopted by the legislature in ERB 2487 in favor of the
prior rates adopted by the PFC. As discussed above, appel-
lants cite no authority for the proposition that the DirectOl'
is authorized to disregard changes adopted by the legisla-
ture that are presumed to be constitutional. Moreoverj the
only rates in effect for the Director to implement were the
new rates established by EHB 2487. This point is discussed
further, below.
[34] The changes in EHB 2487 are clear and do not
contravene the purpose of section 37, Le., to protect against
the fraud and deceit of legislators. While the trial court did
not discuss this issue, we conclude, as a matter of law, that
ERB 2487 does not violate article II, section 37.
E. Should the Director Collect the Rates Originally Set for
the 1999-2001 Biennium or the Reduced Rates,
Changed MidbienIlium?
Retirees and Employees point to former RCW 41-
.45.050(3), which specifies that the Director "shall bill
employers ... using the combined rates established in
ROW 41.45.060 and [.0701 regardless of the level of pension
funding provided in the biennial budget." They also rely on
former RCW 41.45.060(7), providing that the director "shall
collect those rates adopted by the council." They argue that
these sections require the Director to disregard the lower
contI'ibution rates adopted by the legislature in ERB 2487
because they were not the rates adopted by the council.
Appellants' assertions point to a latent conflict between
sections of the pension funding statutes-fonner RCW
41.45.060(7) and .050(3)-and the legislature's ability to
Jan. 2003 RETIRED PUB. EMPLOYEES v. CHARLES 635
148 Wn..2d 602,62 P'3d 470
amend legislation. On the one hand, the statutes instruct
the Director to collect the rates adopted by the PFC regard-
less of the funding in the biennial budget. On the other, the
effectiveness dates for the PFC-adopted rates and the rates
themselves are reported in a piece of legislation, which the
legislature may amend, alter, or repeal aa it chooses,
subject only to the constitution.
Here, the legislature sUllsetted the effectiveness dates for
the PFC-adopted employer contribution rates, midbiennium.
The PFC rates were to extend from July 1, 1999 through
June 30, 2001 for PERS and from September 1,1999 through
June 30, 2001 for TRS. ERB 2487 changed these effective-
ness dates, making the PFC rates ineffective as of April 30,
2000, for both plans. It then established that the new rates
were to take effect on May 1, 2000. Thus, the only rates for
the Director to implement for the remainder ofths bien.n.ium
were those set by EHB 2487. As we already determined, ERB
2487 is constitutional and the funding statutes are simply
legislation. As such, the legislature may amend them at will.
Moreover, the Director is not authorized to disregard proper
legislation and Retirees and Employees do not cite any
authority to the contrary. We mllst conclude that the Director
was under a duty to collect the only rates in exiatence, the
uew rates, for the remainder of the bienuium.
V. CONCLUSION
The legislature provided members of the retirement
systems with a right to seek nlandamus to compel the
transfer aud payment of' funds. Former RCW 41.45.050(3).
This section does not grant members standing in and of
itself. Rather, members seeking to compel the transfer and
payment of funds must independently qualify as benefi-
cially interested parties to acquire standing and compel
action by writ of mandamus. Given the contractual nature
of'their pension rights and their interest in the administra-
tion of the retirement system, generally, Retirees and


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636 RETIRED PUB. EMPLOYEES v. CHARLES Jan. 2003
148 Wn.2d 602, 62 P.3d 470
Employees may be considered "beneficially interested" a.s
required by the mandamus statute and, thus, have stand-
ing to seek a writ of mandamus to compel the transfer and
payment of funds. Ch. 7,16 RCW.
Washington courts have repeatedly refused to character-
ize PERS 1 and TRS 1 as trusts and have similarly refused
to characterize the Director as a trustee outside the context
of cases challenging the investment of retirement funds.
Investment of retirement funds is not at issue in this case.
Relying on such precedent, we hold that PERS 1 and TRS 1
are not trusts and, accordingly, decline to hold the Director
to fiduciary and trustee obligations.
The Retirees and Employees failed to show, beyond a
reasonable doubt, that EHB 2487 violates article I, section
23 or article II, sections 19 and 37 of the state constitution.
rrhe Director's implementation of the lowered contribution
rates adopted by the legislature in EHB 2487, midbien-
nium, was appropriate. Accordingly, we deny appellants'
request for a writ of mandamus to compel the Director to
collect employer contributions to the PERS alld TRS retire-
ment plans at the rates adopted by the PFC. The trial
court's grant of summary judgment in favor of the Director
is affirmed.
ALEXANDER, C.J., JOHNSON, MADSEN, SANDERS, BRIDGE, CHAM-
BERS, and OWENS, JJ., and SMI'l'H, ,J. PRO TEM., concur.
Jan. 2003
WASH. PUB. PORTS ASS'N v. REVENUE
148 Wn.2d 637, 62 P.3d 462
[No. 719349. En Banc.)
637
Argued November 13, 2002. Decided January 30, 2003.
WASHINGTON PUBLIC PORTS AsSOCIATION, Appellant, v. THE
DEPARTMENT OF REVENUE, Respondent.
[1] Administrative Law - Agency Authority - Question of Law
or Fact - In General. The extent of an agency's rule-making
authority is a question of law.
[2] Statutes - Construction - Question of Law or Fact _
Standard of Review. The construction and moalling of a statute is
a question of law that an appellate court reviews de novo.
[3] Statutes - Construction - Unambiguous Language - Plain
Meaning - In General. When a statute's meaning is plain on it
face, a court must givo offect to that plaillllleaning as all expression
of legislative intent.
[4] Statutes - Construction - Plain Meaning - Determination.
The plain meaning of a statute is discerned from the ordinary
meaning of the words used in the statute, the underlying legislative
purposes of the statute, and closely related statutes.
[5] Statutes - Construction - Rules of Construction - Aids to
Construction - Applicability. A court will not resort to aids of
constru.ction to determine the meaning of a statute unless the
statute remains susceptible to more than one reasonable meaning
after a plain meaning analysis.
[ft} Administrative Law - Agency Authority - In General. An
administrative agency possesses only those powers expressly
granted by statute or necessarily implied from a statutory grant of
authority.
[7] Administrative Law - Agency Authority - Implied Powers
- Filling Gaps. An agency lllay adopt rules to "fiU in the gaps" in
legislation if Much rules are necessary to effectuate the general
legislative scheme, although an agency may not adopt rules that
would amend 01' change a legislative enactment.
[8] Administrative Law - Rules - Validity - Consistent With
Statute. An agency rule is valid if it is consistent with the legislative
scheme under which it was adopted.
[9] Administrative Law - Rules - Validity - Presumption _
Burden of Proof - Degree of Proof. An agoncy rule adopted
pursuant to II. legislative grant of authority is presumed to be valid
and will not be invalidated unless compelling reasons are shown
why the rule is in confEct with the intent and purpose of the
legislation. The burden of proving the invalidity of an agency nlle is
on the party challen/:,ril1g ita validity.


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r
402 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
[No, 612137. En Bane. August 29, 1994.]
GEORGE WALKER, ET AL, Petitioners, v. RALPH MUNRO,
ET AL, Respondents.
[1] Courts - Supl'eme Court - Jurisdiction - Original Juris-
diction - Mandamus as to State Officers - Exclusivity -
Discretion of Court. The Supreme Court's original jurisdiction
to issue a writ of mandamus as to all state officers (Const. art. 4,
4) is both nonexclusive and discretionary,
[2] MandHmus - Public Official 01' Body - Legislature -
CIlI'eful Application. When directing a writ of mandamus to
the Legislature or its officials, courts must be especially careful
not to infringe on the historical and constitutional rights of the
legislative branch of government.
[3] Mandamus - Public Official or Body - Specificity. A writ
of mandamus may not be used to direct a public official to pursue
a general course of conduct, such as adhering to the constitution.
The writ must indicate the precise thing to be done.
[4] Mandamus - Public Official or Body - Future Duty. A
court will not issue a writ of mandamus to compel a public of-
ficial to perform, or to prohibit a public official from performing,
a duty that does not yet exist at the time the writ is sought.
[5] Mandamus - Public Official 01' Body - Statute Not Yet Ef.
fective. A writ of mandamus will not be issued on the basis of
the unconstItutionality of a statute that has not yet gone into
effect.
[6] Mandamus - Public Offioial or Body - Discretionary Act
- In General. A court will not issue a writ of mandamus to
compel a public official to perform an act or duty that involves
the official's discretion. Courts may not usurp the authority of
officials of coordinate branches of government to perform non-
ministerial acts.
[7] Courts - Supl'eme Court - Jurisdiction - Original Juris-
diction - Mandamus 8S to State Officers - Incidental Ju-
risdiction - Declaratory Judgment. The Supreme Court does
not have jurisdiction, incident to its original jurisdiction to issue
a writ of mandamus as to all state officers (Const. art. 4, 4), to
provide declaratory relief regarding a statutory provision unless
such a declaration necessarily underlies a writ of mandamus as
to duties under that particular provision.
[8] Declaratory Judgment - Justiciable Controversy - N eces-
sity. As a general rule, a court will enter a declaratory judgment
only for a justiciable controversy. To enter a declaratory
Aug. 1994 WALKERv. MUNRO
124 Wn.2d 402, 879 P.2d 920
403
judgment for a nonjusticiable controversy would be to render an
ad,visory opinion.
[9] Declaratory Judgment - Justiciable Controversy - What
Constitutes. For purposes of an action for a'declaratory judg-
ment, a controversy is not justiciable unless: (1) there is an
actual, present, and existing dispute or the mature seeds of one
(2) between parties having genuine and opposing interests (3)
that are direct and substantial, rather than potential, theoreti-
cal. abstract. or academic. and (4) a judicial determination of the
dispute will be final and conclusive.
[10] Appeal - Decisions Reviewable - Advisory Opinion.
Washington appellate courts do not issue advisory opinions.
[11] Declaratory Judgment - Justiciable Controversy - Excep-
tions .:.- Public Interest - Applicability. The public interest
exception to the requirement that a declaratory judgment be is-
sued only for a justiciable controversy does not apply if the chal
lenged legislation is not yet in effect, no harm has yet occurred,
and the public officials who would be affected by the declaratory
judgment seek dismissal of the action.
[12] Declaratory Judgment - Justiciable Controversy - Pres-
ent Harm - Difllculty in Raising Taxes. For purposes of the
requirement that a justiciable controversy be based on a show-
ing of some present harm, a possible "chilling effect" of an ini
tiative on the ability of the Legislature to raise taxes does not
constitute present harm.
[13] Deolaratory Judgment - Justiciable Controversy - Excep-
tions - Comity Among Branches of Government. The com-
ity among branches of government exception to the requirement
that a declaratory judgment be issued only for a justiciable
controversy does not apply when the public officials who would
be affected by the declaratory judgment seek dismissal of the ac-
tion.
[14] Statutes - Validity - Standing To Challenge - Test. A
party who is not adversely affected by a statute does not have
standing to question its validity.
[15] Appeal- Assignments of Error - Argument - Necessity
- In General. An appellate court will not decide a contention
that is not specifically briefed and is completely unsupported by
adequate argument.
[161 Mandamus - Public Official or Body - Scope - Limita-
tion to Relief Requested. A writ of mandamus may not compel
a public official to perform an act that was not requested in the
petition for the writ.


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: : ~ ,
404 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
[17] Statutes - Referendum - Legislature's Authority - Judi-
cial Interference. Courts will not interfere with the constitu-'
tional power of'the Legislature to refer a bill to the voters (Const.
art. 2, 1).
[18] Courts - Supreme Court - Jurisdiction - Original Juris-
diction - Mandamus as to State Officers - Incidental Ju-
risdiction - Test. The Supreme Court does not have original
jurisdiction to decide other matters incident to the exercise of its
. original jurisdiction to issue a writ of mandamus as to all state
officers (Canst. art, 4, 4) unless such other matters are part of
the specific issue subject to the mandamus proceeding,
UT'.l'ER and JOHNSON, JJ., dissent by separate opinion.
Nature of Action: Original action seeking a writ of
mandamus prohibiting the State from implementing and
enforcing Initiative 601, a judgment declaring the initia-
tive to be unconstitutional, and a permanent injunction
barring its operation. Initiative, 601 limits state expendi-
tures, taxes, and fees.
Supreme Court: Holding that the action is not properly
before the court on an application for a writ of mandamus,
that declaratory and injunctive relief is not available as
incident to the writ of mandamus, and that the issues
raised are not presently justiciable, the court dismisses the
action.
Preston Gates & Ellis, by Paul J. Lawrence and John Da-
vid Fugate, for petitioners.
Christine O. Gregoire, Attorney General, Narda Pierce, So-
licitor General, and Jeffrey T. Even and Anne E. Egeler, for
respondents.
James M, Johnson, for intervenors.
Hugh D. Spitzer on behalf of American Association of
University Professors, amicus curiae for petitioners.
Ronald A. Zumbrun, Robin L. Rivett, Deborah J. La Fetra,
and John M. Groen on behalf of Pacific Legal Foundation,
amicus curiae for respondents.
Aug. 1994 WALKERv. MUNRO
124 Wn.2d 402,879 P.2d 920
405
BRAcHTENBAcH, J. - Petitioners bring an original action,
requesting a writ of mandamus, a declaratory judgment, and
an injunction, based on the claimed unconstitutionality of
certain provisions of Initiative 601 under the state constitu-
tion. The Respondents and Intervenors move to dismiss the
action. We grant the motion to dismiss.
On November 2, 1993, Initiative 601 was approved by the
voters by a vote of 774,342 in favor and 737,735 opposed .
Generally, Initiative 601 is a measure limiting expenditures,
taxation, and fees. Section 8, limiting the amount fees may
be increased, and section 13, providing for voter approval for
certain tax measures, went into effect immediately. The rest
of the provisions will not take effect until July 1, 1995.
Beginning July 1,1995, the state tax revenue limit will be
replaced by a state expenditure limit. Under section 2 of the
initiative, the limit for a fiscal year is to be calculated by
increasing the previous year's limit by a percentage equal to
the fiscal growth factor, which is derived by averaging the
sum of inflation and population change for a 3-year period.
The State Treasurer is prohibited from issuing or redeeming
a check, warrant, or voucher that will result in a general
fund expenditure beyond the limit for the fiscal year.
Under section 3 an emergency reserve fund is established,
in which state revenues in excess of the expenditure limit
are deposited. Moneys from the fund may be appropriated,
within limits, only by approval of two-thirds of the members
of each house of the Legislature. If the emergency reserve
fund balance exceeds a certain amount, the balance. is
transferred to an education construction fund. The Legisla-
ture may only appropriate moneys from that fund for school
construction, unless the appropriation is approved by a two-
thirds vote in each house and is approved by a vote of the
people at the next general election. .
Under section 4, any action that raises state revenue or
requires a revenue-neutral tax shift may be taken if ap-
proved by a two-thirds vote of each house and if the state
expenditures will not exceed the expenditure limits. If the
action results in expenditures in excess of the limit, then the


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406 WALKER v. MUNRO Aug. 1994
124 Wn.2d 402,879 P.2d 920
action requires a two-thirds majority in each house and
voter approval at the next general election. Where an
emergency has been declared, the state expenditure limit
may be exceeded if approved by two-thirds of each house
and signed by the Governor.
Under section 8, effective immediately, a fee may not
increase in a fiscal year by a percentage in excess of the
growth factor, unless there is prior legislative approval. Sec.
tion 13, which continues in effect only until July 1, 1995,
when the other provisions become effective, provides that
voter approval is required to raise existing taxes, impose
new taxes, or make revenue-neutral tax shifts.
In December 1993, the Petitioners requested that the At-
torney General file suit on their behalf and on behalf of the
taxpayers of Washington, to challenge the constitutionality
of Initiative 601. The Petitioners include: three public advo-
cacy groups (one relating to children and two relating to
senior citizens), two legislators, and six Washington citizens.
The Attorney General refused to file suit. The Petitioners
then filed a petition in this court. The Respondents, five state
officials, answered the petition and moved to transfer the
C8.use to Thurston County Superior Court. We denied the
motion. Linda Smith and the Washington Taxpayer Protec-
tion Coalition, sponsors of the initiative, moved to intervene
and the motion was granted. The Intervenors then moved to
dismiss, which was followed by the Respondents' motion to
dismiss. We first set the hearing on the motion to dismiss in
conjunction with oral argument on the substantive issues,
but later ordered that the motion to dismiss be heard
separately. We now grant the motion to dismiss.
The Petitioners seek a writ prohibiting the Respondent
state officials from implementing and enforcing Initiative
601, a declaratory judgment that Initiative 601 is unconsti-
tutional, and a permanent injunction barring its operation.
Petition for Writ of Mandamus and for Declaratory Judg-
ment and Injunctive Relief (hereinafter Petition), at 2.
The Petitioners assert that jurisdiction of this court is
founded upon Canst. art. 4, 4; RAP 16.2(a); Rew 7.16.150
Aug. 1994 WALKERv. MUNRO 407
124 Wn.2d 402, 879 P .2d 920
et seq. (governing mandamus proceedings); and RCW
7.24.010 et seq. (the Uniform Declaratory Judgments Act).
Under the Washington State Constitution, the Supreme
Court has original jurisdiction in "habeas corpus, and quo
warranto and m a ~ d a m u s as to all state officers". Const.
art. 4, 4. Petitioners assert they are seeking declaratory
and injunctive relief as incidental to the writ of manda
M
mus. Br. of Pet'rs, at 43.
With the exception of sections 8 and 13, none of the pro-
visions of the initiative are effective until July 1, 1995. Un-
less otherwise noted, the following discussion relates to the
Petitioners' claims regarding those sections of the initiative
not yet effective, which are the primary focus of this action.
We will address sections 8 and 13 separately.
[1, 2] We note at the outset that mandamus is an
extraordinary writ. Our original jurisdiction to issue a writ
is both nonexclusive and discretionary. Department of Ecol
ogy v. Sta.te Fin. Comm., 116 Wn.2d 246,804 P.2d 1241 (1991).
When directing a writ to the Legislature or its officers, a co-
ordinate, equal branch of government, the judiciary should
be especially careful not to infringe on the historical and
constitutional rights of that branch.
[3] In their Petition, the Petitioners request the court to
. issue a writ of mandamus directing the Respondents Uta ad-
here to the requirements of the Washington State Constitu-
tion and to prohibit them from implementing and enforcing
Initiative 601". Petition, at 18. Writs are not directed at a
general course of conduct. In State ex rel. Taylor v. Lawler,
2 Wn.2d 488, 490,98 P.2d 658 (1940), we said:
The jurisdiction given to this court by the state constitution
in Art. IV, 4, to issue writs of mandamus to state officers, does
not authorize it to assume general control or direction of official
acts.
Instead, the remedy of mandamus contemplates the neces-
sity of indicating the precise thing to be done. Clark Cy.
Sheriff v. Department of Social & Health Servs., 95 Wn.2d
445, 450, 626 P.2d 6 (1981) (citing State ex reI. Hawes v.
Brewer, 39 Wash. 65, 80 P. 1001 (1905)). In State ex rei.


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408 WALKER v. MUNRO Aug. 1994
124 Wn.2d 402,879 P.2d 920
Pacific Am. Fisheries v. Darwin, 81 Wash. 1, 12, 142 P. 441
(1914) (citing State ex reI. Hawes v. Brewer, 39 Wash. 65,
67-69, 80 P. 1001 (1905, we a1810 stated:
Mandamus will not lie to compel a general course of official
conduct, as it is impossible for a court to oversee the perfor-
mance of such duties. . . .
... It is therefore necessary to point out the very thing to be
done; and a command to act according to circumstances would
be futile.
It is hard to conceive of a more general mandate than to or-
der a state officer to adhere to the constitution. We have con-
sistently held that we will not iElsue such a writ.
This does not mean that a writ cannot issue in regards to
a continuing violation of a duty. Where there is a specific,
existing duty which a state officer has violated and contin-
ues to violate, mandamus is an appropriate remedy to
compel performance. See Clark Cy. Sheriff D. Department of
Social & Health Servs., supra (cited by the Petitioners). In
Clark Cy. Sheriff, the Department of Social and Health Ser-
vices was required by statute to accept all convicted felons
offered by the sheriff for tranSfE!r to a reception center. The
Director of the adult correctiolls division maintained that
he had discretionary power to delay acceptance. The De-
partment of Social and Health Services repeatedly accepted
less than half the persons o f f e r E ~ d for transfer, and took the
position that it could continue to do so. This court upheld
the superior court order granting a writ of mandamus to
compel the Department of Social and Health Services to ac-
cept the felons. Although this writ was directed at future
conduct, i.e., accepting the felons in the future, the Director
had also failed to act on many :Pl'evious occasions. Further,
the order compelling the Director to perform his duty was
quite specific. The court ordered the Director to receive at
the reception center inmates of the Clark County Jail
convicted of a felony and committed to a state penal institu-
tion by the Superior Court for Clark County. Clark
Cy. Sheriff, at 450. Although the Petitioners would have us
rely on this case for authority to issue a writ directed at
Aug. 1994 WALKER v. MUNRO 409
124 Wn.2d 402, 879 P.2d 920
general conduct here, there is a difference between a
recurring situation where the same specific duty repeat-
edly arises, and a general course of official conduct. A writ
directing four public officials to comply with the constitu-
tion would prescribe not merely future actions, as Petition
ers argue, but an entire scope of official duties. We decline
to issue a writ directing officers of the State to adhere to
the constitution, as we presume that they already do so
without our direction.
[4,5] Further, the courts will not issue a writ in anticipa-
tion of a supposed omission of a duty, or unless the duty ex-
ists at the time the writ is sought. The duties the Petition-
ers request this court to compel or prohibit are not yet being
performed, nor are they capable of performance, until the
effective dates of the provisions. In State ex rel. Hamilton v.
Cohn, 1 Wn.2d 54, 58-59, 95 P.2d 38 (1939) we stated:
The duty to be enforced by mandamus must be one which
exists at the time when the application for the writ is made. The
writ will not issue in anticipation of' a supposed omission: of duty,
but it must appear that there hae been an actual default in the
performance of a clear legal duty then due at the hands of the
party against whom relief is sought. Until the time fixed for the
performance of the duty has passed, there can be no default of
duty.
The court in Cohn further stated that a writ will not be
granted on the basis of the unconstitutionality of an act
until the time the act is effective:
The courts uniformly hold, on the question whether manda-
mus should issue where the relator's right to the writ depends
on holding an act of the legislature unconstitutional, that the
constitutional question will not be decided before the time when
the statute is to take effect has arrived and a proper case under
the statute is presented.
Cohn, at 63 (citing 38 C.J. Mandamus 681, at 920 (1925.
On this basis, the court originally denied the Petition as
premature. Cohn, at 61-62. Likewise, the writ petition here,
insofar as it is based on still inoperative law, is also prema-
ture.
The court in Cohn distinguished Acme Fin. Co. v. Huse, 192
Wash. 96, 194 Wash. 706, 73 P.2d 341, 77 P.2d 595, 114 A.L.R.


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410 WALKER v. MUNRO Aug. 1994
124 Wn.2d 402, 879 P .2d 920
1345 (1937), in which the court rendered a declaratory
judgment on a statute not yet effective on the grounds that
Acme Fin. Co. involved a declaratory judgment, not a writ
of mandamus, and that the action there was maintainable
in view of the allegations of the complaint that plaintiff would
be damaged by its enforcement in person or property, that the
defendant public officer was charged to enforce such statute
and about to or would do so, and that such enforcement would
infringe the constitutional rights of plaintiff.
Cohn, at 62. We acknowledge the further distinction that the
statute in Acme Fin. Co. was only 1 month away from ita
effective date and, unlike here, no ambiguities existed as to
its operation. We will not diverge from the rule in Cohn and
compel or prohibit the performance of duties which do not
now exist.
[6] Finally, mandamus may not be used to compel the
performance of acts or duties which involve discretion on the
part of a public official. Vangor v. Munro. 115 Wn.2d 536,
643, 798 P.2d 1151 (1990); State ex rel. Pacific Bridge Co. v.
State Toll Bridge Auth., 8 Wn.2d 337, 342-43, 112 P.2d 135
(1941), We will not usurp the authority of the coordinate
branches of government.
The Petitioners claim that the Respondents, Speaker of the
House and President of the Senate, have the duties to preside
over the Legislature, certainly not an appropriate subject for
mandamus, and to certify and sign bills passed. The signing
of a bill is not a ministerial task, as it involves a decision
regarding the number of votes required for a particular ac-
tion and whether those votes have been properly cast. In fact,
these presiding legislative officers will be required to deter-
mine whether Initiative 601 applies to a particular bill if
some or all of Initiative 601 remains the law. We will not
grant a writ relating to these tasks. See State ex rel. Davisson
v. Bolte, 151 Mo. 362, 52 S.W. 262 (1899). The Treasurer has
the duty to receive, keep, and disburse all the moneys of the
state. The Petitioners make no argument that these are
merely ministerial tasks. Again, if some of the provisions of
the initiative remain in effect, the Treasurer will also need
Aug. 1994
WALKERv. MUNRO 411
124 Wn.2d 402,879 P.2d 920
to determine which disbursements would be in violation of
the expenditure limit. The Attorney General is charged
with prosecuting violations of the law, a duty which is gen-
erally recognized as highly discretionary. We will not tell
state officials how to make discretionary decisions in ad-
vance, but will refrain from acting until after a state of-
ficer has undertaken action under the initiative and there
is a claim that the officer has abused his or her discretion.
[7] In addition to mandamus, the Petitioners seek relief
in the form of a declaratory judgment pursuant to RCW
7.24.010-.020. This court's original jurisdiction is governed
by the constitution and, by the plain language of the consti.
tution, does not include original jurisdiction in a declaratory
judgment action. The Petitioners themselves do not make
the claim that this court has original jurisdiction under the
declaratory judgments act, but seek declaratory relief as
incidental to the mandamus proceedings. The only grounds
on which this court could render declaratory relief regard-
ing a provision of the initiative is if such a declaration nec-
essarily underlies a writ of mandate as to duties under that
particular provision. We have already established the impro-
priety of mandamus in this case.
[8, 9] Even if this court did have original jurisdiction to
hear this case as a declaratory judgment action, review
would still be improper in that the action is not justiciable
at this time. For declaratory judgment purposes, a justicia-
ble controversy is:
(1) . an actual, present and eXisting dispute, or the mature
seeds of one, as distinguished from a possible, dormant, hypo-
thetical, speculative, or moot disagreement, (2) between parties
having genuine and opposing interests, (8) which involves inter-
ests that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determina-
tion of which will be final and conclusive.
Nollette v. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359
(1990) (citing Diversified Indus. Deu. Cmp. v. Ripley, 82
Wn.2d 811, 815, 514 P.2d 137 (1973; Spokane u. Taxpayers
of Spokane, 111 Wn.2d 91, 758 P.2d 480 (1988). Absent these


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412
WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
elements, the court "steps into the prohibited area of ad-
visory opinions." Diversified Indu8., at 815.
Petitioners argue that the 4-part test is met here. It is not.
In regard to an actual, as opposed to hypothetical, dispute,
most of the provisions of Initiative 601 are not yet in effect.
When a statute is not in effect, and when it may be amended
by the very persons the Petitioners claim are being harmed,
state legislators, we cannot do otherwise than find that this
is only a speculative dispute.
As far as direct and substantial harm, the primary harm
identified by the Petitioners is that Initiative 601 affects
budgetary decisions and long-term fiscal plans. See Ex. 0
(Declaration of Art Wang); Ex. N (Declaration of Marlin Ap-
pelwick); Ex. M (Declaration of Nita Rinehart). These decla-
rations also discuss confusion or concern in the Legislature
regarding the initiative, but do not identify how there has
been actual, concrete harm to the Petitioners. Indeed, the
declarations reveal the purely political nature of the Peti
tioners' challenge at this time. The main contention of the
Petitioners seems to be that the Legislature is having dif-
ficulty raising taxes, a political problem which was resolved
by the voters when Initiative 601 was enacted to limit the
ability of the government to raise taxes.
Furthermore, the Petitioners point to no immediate harm
to those Petitioners who are not state legislators. Although
the Petitioners who are, for example, students or teachers,
may have an interest in funding for state educational insti-
tutions, there is no diBcussion of how these Petitioners are
being currently affected or denied some benefit by Initiative
601 which is rightfully theirs.
At this time, there are still many ambiguities regarding
the provisions of the initiative. In fact, the Petitioners
themselves refer to the confusion regarding the implementa-
tion of the initiative. Reply Br. of Pet'rs, at 22; see also Ex.
P (Declaration of Helen Sommers), at 2 (stating that Uthe
Initiative's gray areas have made long-term fiscal policy
decisions virtually impossible."). The text of the initiative
itself is capable of differing interpretations, and it is yet
Aug. 1994 WALKER v. MUNRO
413
124 Wn.2d 402, 879 P.2d 920
unclear what is required under some of the provisions. For
example, under section 4(1), providing for super majority
approval for actions which raise state revenue or require
revenue-neutral tax shifts, there is no definition of
revenue-neutral shifts. It is uncertain whether debt service
is included in the expenditure limitation, an issue which
has the potential to impact the budget, but is still undeter-
mined. Ex. 0 (Declaration of Art Wang), at 2. A major am-
biguity is whether the vote requirement of sec-
tion 4(1) applies to general fund taxes only or also to taxes
not deposited into the general fund. Ex. R (Memorandum
from Narda Pierce, Solicitor General, to assistant attor-
neys general), at 12. These are but a few of the
uncertainties in interpreting the initiative, many more of
which are contained in the declarations submitted by the
Petitioners, and the memorandum from the Solicitor Gen-
eral. Exs. R; CoP. We are not asked to resolve these
ambiguities here, but note that they render it difficult to
determine whether the initiative does, in fact, have pres-
ent harmful effects.
Aside from the ambiguities as to the nature of the
mente of the initiative, the potential harmful effects of the
initiative may never come to pass. It is possible that acts
which are deemE-ad to fall within section 4(1) will pass by two-
thirds of the votes and so this greater voting requirement
will have no real effect. Perhaps the Legislature can comply
with section 4(1), without taking action which will result in
. expenditures over the expenditure limit, such that no refer-
ral to the voters will occur under section 4(2)(0.), providing
for voter referral for actions under section 4(1) which result
in expenditures in excess of the expenditure limit. The
course of future events is, at this time, purely speculative
and subject to a challenge when a specific dispute arises in
regard to a particular bill. Until presented with an existing,
fact-specific action, this court will not involve itself in what
is an essentially political dispute.
If this court were to speculate, as the Petitioners seem to
be asking, and assume that the initiative will cause future
harm to the various Petitioners, such as forcing a redefini-


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414 WALKER v. MUNRO Aug. 1994
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tion of basic education, then this court might just as well
go one step further and assume that the Legislature will
choose to ameliorate these alleged harms by amending the
initiative, which it can do now by a two-thirds vote and
will be able to do by a simple majority after December
1995. This potential short life, 5 months, militates against
an advisory opinion before the legislation even becomes
fective.
[10] Therefore, contrary to the Petitioners' assertions,
this action does not meet the 4-part justiciability test. A de-
cision at this time would be advisory only. Although courts
in some states do render advisory opinions, we do not do so
in this Washington Beauty College, Inc. v. Huse,
195 Wash. 160, 164, 80 P.2d 403 (1938).
The Petitioners argue that even if the justiciability
test is not met, the court should follow the "well-established
rule that this court will hear matters of great public impor-
tance without regard to justiciability." Reply Br. ofPet'rs, at
20. However, the casesl relied on by the Petitioners do not
provide strong support for their contentions.
[1l] The Petitioners rely primarily on a passage from
State ex reI. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d
175, 178,492 P.2d 1012 (1972):
Where the question is one of great public interest and has been
brought to the court's attention in the action where it is
adequately briefed and argued, and where it appears that an
opinion of the court would be beneficial to the public and to the
other branches of the government, the court may exercise its
discretion and render a declaratory judgment to resolve a ques-
tion of constitutional interpretation.
This statement, however, does not refer to review of issues
not yet ripe, as timing was not an issue in Distilled Spirits.
The tax on the sale of liquor challenged in Distilled Spirits
was already implemented and the taxpayer petitioner had
already paid the tax. The above quotation is in answer to the
respondent's argument that the court could not examine the
legislative process involved in enacting the tax measure
because of the "enrolled bill" doctrine. That doctrine holds
that an enrolled bill on file, duly signed, and fair upon its
face is conclusive evidence of the regularity of the enactment
Aug. 1994 WALKER v. MUNRO 415
124 Wn.2d 402, 879 P.2d 920
proceedings, in accordance with the constitution. The court
decided to render a declaratory judgment despite the
rolled hill" doctrine.
Furthermore, the members of the Legisiatul'e, the Gover-
nor, and the Attorney General also desired an opinion on
the constitutional issue presented in Distilled Spirits, as it
affected a number of legislative acts already passed. This is
in stark contrast to the current action, in which the Respon-
dent state officials seek a dismissal. Distilled Spirits is
ily distinguished from this case where the challenged mea-
sures are not yet in effect, where there is no present harm
to taxpayers even alleged, much less a tax paid, and where
the state officials involved in enforcing the law do not seek
an opinion.
In addition to Distilled Spirits, the Petitioners claim that
our case law is replete with cases of major public import in
which this court dispensed with the justiciability test. Reply
Br. ofPet'rs, at 20-21. An examination of the numerous cases
cited for this claim reveals that not only is this an overstate-
ment, but that even if we do not always adhere to all four
requirements of the justiciability test, this court will. not
render judgment on a hypothetical or speculative contro-
versy, where concrete harm has not been alleged.
The Petitioners cite both DiNino v. State ex rel. Gorton,
102 Wn.2d 327, 332, 684 P.2d 1297 (1984) and Diversified In-
dus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137
(1973). In each of these two cases, this court dismissed the
actions as not ripe for review. In DiNino, the court refused
to render a declaratory judgment as to the constitutionality
of the Natural Death Act (ROW 70.122). A woman who was
not pregnant and not terminally ill wanted a declaration of
the validity of her directive to her physician regarding life
sustaining procedures, which differed from the model direc
tive in the act as far as pregnancy and abortion provisions.
Despite the obviously important constitutional rights in-
volved, the court held that there was no justiciable contro-
versy, as the case presented a CChypothetical, speculative
controversy". DiNino, at 332. The court went on to hold that


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416 WALKER v. MUNRO Aug. 1994
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without a factual controversy before it, "an advisory opin-
ion would not be beneficial to the public or to other
branches of government." DiNino, at 332.
The court in Seattle Sch. Dist. .1 v. State, 90 Wn.2d 476,
585 P.2d 71 (1978), cited by the Petitioners, did rely in part
on the public interest involved in finding that there was a
justiciable controversy. That case involved not an unripe
claim, but the argument that as an arm of the State, the
school district could not be an adverse party to the State.
The controversy itself was not in any way speculative or hy-
pothetical.
[12] The Petitioners also cite to Fritz v. Gorton, 83 Wn.2d
275,517 P.2d 911, appeal dismissed, 417 U.S. 902,41 L. Ed.
2d 208, 94 S. Ct. 2596 (1974), in which the appellants alleged,
in part, that a provision of a particular initiative had a chill-
ing effect on their First Amendment right to petition the
government. In the First Amendment context, a "chilling ef-
fect" on First Amendment rights is a recognized present
harm, not a future speculative harm, which allows third
party standing when the law in question burdens constitu-
tionally protected conduct. Tacoma v. Luuene, 118 Wn.2d
826,827 P.2d 1374 (1992). The present case does not arise in
the context of the First Amendment and we will not rely on
the claimed tlchilling effect" of the legislation on tax in-
creases and expenditures to find present harm.
The Petitioners referred to Seattle u. State, 103 Wn.2d 663,
694 P.2d 641 (1985) in their brids and at oral argument.
There this court granted standing to the City to challenge
two statutes governing annexation procedures. We pro-
nounced that the City had a interest in the fairness
and constitutionality of the proceBS by which it annexes ter-
ritory", in response to the argument that the City did not
have standing to bring an equal protection claim. Seattle, at
669. Although this court did state that the requirements for
standing are applied more liberally in cases of public import,
there was no argument that the controversy was not a pres-
ent one or that the threatened harm had not yet occurred.
The City had already attempted to annex territory, but the
Aug. 1994 WALKER v. MUNRO 417
124 Wn.2d 402, 879 P.2d 920
attempts were thwarted twice, each time under the newly
enacted statutes the City was challenging in the case. The
City had, in fact, been affected by the legislation. This
claim cannot be made here.
[13] We fully acknowledge that this court has, on the rare
occasion, rendered an advisory opinion as a matter of comity
for other branches of the government or the judiciary. In
Citizens Coun. Ag'ainst Crime v. Bjork, 84 W;n.2d 891, 529
P.2d 1072 (1975), referred to by the Petitioners, involving the
legislative power to override the Governor's veto, this court
held that it would render an advisory opinion H[i]n consider-
ation of the comity existing between the judicial and execu-
tive branches of the state government". Citizens Council, at
895. See also State ex rel. O'Connell u. Dubuque, 68 Wn.2d
553,413 P.2d 972 (1966) (Legislature passed concurrent res-
olution seeking an adjudication). Here, not only is there no
request by the Legislature itself that we adjudicate this case,
but the Respondent state officials, of both the legislative and
executive branches, seek dismissal of the case.
Again, this court in Nostrand v. Little, 58 Wn.2d 361
P.2d 551 (1961), appeal dismissed, 368 U.S. 436, 7 L. Ed. 2d .
426, 82 S. Ct. 464 (1962) issued an opinion only because the
United States Supreme Court directed that it do so. Nos-
trand involved the validity of an act requiring every public
employee to subscribe to an oath that he or she was not a
. subversive or member of the Communist party, arguably a
matter of public importance. The court noted that there was
no allegation or finding that the professors challenging the
oath had refused to take the oath or that they intended to
refuse in the future. The court stated that without "such a
showing it would seem premature, even in a declaratory
judgment action, for a court to rule on a hypothetical situa-
tion." Nostrand, at 119. The court went on to enter a
contingent ruling, based on the hypothetical assumption
that the plaintiffs were in a position to raise the issue when
the case first came to the court. Nostrand, at 119. In the
absence of a command from the Supreme Court, we will not
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418
WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
The Nostrand case contrasts with the Petitioners' citation
to Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952),
where the challenged statute required an oath or affidavit
from candidates for office stating that the candidate was not
a subversive. Plaintiffs there stated that they would be
prevented from becoming candidates because they could not
or would not take the oath. The court adjudicated the ques-
tion anyway. However, Nostrand, decided later, inferred the
opposite view on the necessity that the action governed by
the challenged statute have occurred before a challenge may
be brought. We agree with Nostrand.
Thus, the cases cited by the Petitioners do not compel us
to reach the conclusion that this court will readily ignore
justiciability requirements. We choose instead to adhere to
the longstanding rule that this court is not authorized under
the declaratory judgments act to render advisory opinions or
pronouncements upon abstract or speculative questions.
Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 164,
80 P.2d 403 (1938). See also Kitsap Qy. v. Bremerton, 46
Wn.2d 362, 370, 281 P,2d 841 (1955); DeGrief v. Seattle, 50
Wn.2d 1, 14, 297 P.2d 940 (1956); Brehm v. Retail Food &
Drug Clerks Union 1105, 4 Wn.2d 98, 101, 102 P.2d 685
(1940),
In addition, even if we completely ignored the well-
established justiciability rules, this does not mean that the
court may issue a declaratory judgment where the court
does not have original jurisdiction as provided by the consti-
tution. With the exception of the unusual State ex rel.
Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 492
P.2d 1012 (1972) case, in all declaratory judgment cases the
Petitioners cite for the proposition that jurisdiction should
be exercised broadly, the action began in the superior court
and we then granted review.
Much of the briefing of the Respondents and Intervenors
is directed to the argument that the Petitioners do not have
standing. Because this action fails under the general
justiciability standards as discussed, and because we do not
have original jurisdiction over this action, we will not
Aug. 1994 WALKER v. MUNRO
124 Wn.2d 402, 879 P,2d 920
419
engage in a lengthy analysis of the standing iSBue. A few
points are of note, however.
[14] The standing doctrine prohibits a litigant from rais-
ing another's legal rights. The kernel of the standing doc-
trine is that one who is not adversely affected by a statute
may not question its validity. Haberman v. WPPSS, 109
Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987) (citing
Allen v. Wright, 468 U.S. 737, 750-51, 82 L. Ed. 2d 556, 104
S. Ct. 3315, reh'gdenied, 468 U.S. 1250,82 L. Ed. 2d 942,105
S. Ct. 51 (1984, appeal dismissed, 488 U.S. 805 (1988). None
of the Petitioners have alleged concrete harm under the
legislation. Legislator Petitioners have not stated what leg-
islation has failed to pass under the enactment process
established by the initiative, or what interest they have in
that legislation. The citizen Petitioners have not alleged that
any benefit has been denied to them at this time, Standing
seems to be based only on taxpayer standing.
Here, the initiative purportedly limits expenditures and
taxes. According to one declaration, "the Legislature is ac-
tively considering tax cuts now," Ex. 0 (Declaration of Art
Wang), at 4. Although this court has frequently recognized
taxpayer standing, State ex rel. Tattersall v, Yelle, 52 Wn.2d
856, 859, 329 P.2d 841 (1958), and a number of the Petition-
ers are taxpayers, it is questionable whether taxpayers have
standing to protest limits on taxation. See State ex rel. Sm.ith
v. Haveland, 223 Minn, 89,93,26 N.W.2d 474 (1946) (stating
that the u
mere
denial of a desire to be taxed is not an act
adverse or hostile to any legal interest"), The affidavits sub-
mitted to claim that Initiative 601 is currently causing harm
relate only to the problems of government officials. There is
no affidavit by a taxpayer relating to harm to taxpayers.
Instead, in the Petition, it is repeatedly stated that a given
petitioner, as "a taxpayer of the State of Washington" will be
"affected by and have an interest in implementation of
Initiative 601 and its impact on the state revenue process."
Petition, at 4, 6. Although a taxpayer need not allege a
personal stake in the matter, but may bring a claim on
behalf of all taxpayers, Tacoma v. O'Brien, 85 Wn.2d 266,


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420 WALKER v. MUNRO
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124 Wn.2d 402,879 P.2d 920
269, 534 P.2d 114 (1975), it is more questionable whether
taxpayer standing is appropriate to protest legislation
which, by the Petitioners' own claims, will decrease state
expenditures and make the raising of taxes more difficult.
Nevertheless, even if this court were to hold that the
Petitioners had standing, this adion is still not justiciable
a:t this time for the reasons given above.
For clarity, we reiterate that the discussion until this
point has been directed at those of the initiative not
yet in effect. We now move on to examine the issues sur-
rounding sections 8 and 13.
Section 8, currently in effect and which will remain in ef-
fect, provides that "[nlo fee may increase in any fiscal year
by a percentage in excess of the filscal growth factor for that
fiscal year without prior legislative approval." Laws of 1994,
ch. 2, 8, p. 23. The Petitioners are challenging section 8 on
the grounds that in limiting the fee-setting authority of
administrative agencies, the initiative did not set out all the
fee-related statutes which would be "amended" by this pro-
vision.
[15] Despite the fact that section 8 is in effect, Petition-
ers' challenge to section 8 is not justiciable 'as brought. A
great deal of additional briefing would be necessary to bring
Ii viable challenge to section 8. For example, although the
Petitioners provide a list of fee statutes they claim are
amended by section 8, some of these statutes may not actu-
ally come within the purview of section 8. See Br. of Resp'ts,
at 44 n.23. The Petitioners make no argument at all regard-
ing these statutes and whether each one has, in fact, been
amended by section 8, but merely give cites to hundreds of
statutes. We do not wish to address a matter which is not
specifically briefed, and is completely unsupported by ade-
quate argument. Saunders v. Lloyd's of London, 113 Wn.2d
330, 345, 779 P.2d 249 (1989). We certainly will not, on our
own, analyze each and every lstatute referred to by the
Petitioners to determine whethE!r section 8 has improperly
amended the statute. That task is for the Petitioners to
undertake.
Aug. 1994 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
421
Furthermore, the Petitioners can assert no harm to them-
selves or others. The Petitioners have not claimed that state
agencies have been unable to increase fees, nor is there a
claim that section 8 has impeded an agency's ability to raise
fees. According to the Respondents, at least three agencies
have obtained permission to raise fees. Br. of Resp'ts, at 6.
Thus, the Petitioners identify no concrete harm.
The Petitioners do not allege interest in any particular
fees. None of the Petitioners claim to be responsible for
imposing fees, nor claim to be the beneficiaries of services
provided by the fees. As to those Petitioners who claim
taxpayer standing, there is no claim as to how section 8 will
affect the expenditure of state funds or will cause them to
pay higher taxes.
In addition, there is no pleading relating to the nature of
the writ of mandamus being requested to bar implementa-
tion of section 8. No official has been identified. The only
remedy which the Petitioners appear to seek in regards to
section 8 is a declaration that the section is unconstitutional.
We have no original jurisdiction to issue such a
judgment. In short, the Petitioners have identified no
grounds on which mandamus could issue based on the facts
and allegations presented.
We will not hear a challenge to section 8 of the initiative
as uincidental" to the Petitioners' other claims, as the Peti-
tioners urged at oral argument and in the briefing. In Yelle
v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), cited by the
Petitioners at oral argument, this court considered a claim
similar to the one the Petitioners make regarding section 8,
as part of a declaratory action by the State Auditor challeng-
ing the constitutionality of an act creating a new budget and
accounting system. The fact that in Yelle this court consid-
ered the claim that the budgetary and accounting act had
improperly amended prior law, along with its review of the
Auditor's other claims, does not mean that this court will
hear a similar claim in this case. In Yelle, the entire action
was properly before the court: all the challenged provisions
were in effect; the Auditor had an interest in the entire act


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422 WALKER v. MUNRO Aug. 1994
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as it affected the operation of his office; and, the claim was
properly brought in superior court as a declaratory judg
ment action. Here the claim is being brought in on the
shirttail of a mandamus action, which is improperly before
us in the first place. Further, the Petitioners cannot cite to
the same interest in the operation of section 8 as the State
Auditor could point to in Yelle.
In sum, the record here is inadequate to fashion any kind
of relief in regards to section 8 under the court's original
mandamus jurisdiction, or to provide declaratory relief.
The other provision currently in effect, section 13, pro-
vides:
After the effective date of this section, the state may raise
existing taxes, impose new taxes as authorized by law, or make
revenue-neutral tax shifts only with approval of a majority of
the voters at a November general election. . . .
Laws of 1994, ch. 2, 13, pp. 23-24. The Petitioners claim
that there are four bills passed by the Legislature which
may fall under section 13, although t h ~ y provide no analy-
sis of whether the bills are, in fact, subject to section 13.
Indeed, three out of the four bills do not, by their own terms,
fall under the ambit of section 13 at this time. Those three
bills, Engrossed Substitute House Bill 2326, Substitute Sen-
ate Bill 6307, and Engrossed House Bill 2670, go into effect
without voter referral, unless a court declares that referral
would be necessary in order to comply with Initiative 601.
Br. of Pet'rs, at 89-40. There is no indication that any of
these three bills are the subject of a court action to rule
whether they are within the ambit of Initiative 601 and
certainly they are not before us now to make such a deter-
mination.
The only bill which is at. this time subject to voter refer-
ral is Engrossed Second Substitute House Bill 2319 (E2SHB
2319). However, the Petitioners themselves appear to doubt
that they have a clear case for a writ directed at referral of
E2SHB 2319, in that they state only that 'l(fJour of the
measures passed during the session were revenue measures
arguably within the ambit of Initiative 601." Br. of Pet'rs, at
Aug. 1994 WALKER v. MUNRO 423
124 Wn.2d 402. 879 P.2d 920
39. Although only one of the bills is possibly subject to the
referral provisions of section 13 at this time, the Petition-
ers state in their brief that the writ should direct the Sec-
retary of State not to certify any of the tlmeasures recently
enacted by the Legislature in its 1994 session" to the bal
lot. Br. of Pet'rs, at 42. Such a writ would be based only on
speculation as far as three of the four bills.
[16] No writ directed at E2SHB 2319 is requested in the
Petition, and in the Petition itself, the requested relief is
that the Secretary of State adhere to the constitution. After
E2SHB 2319 passed, the Petitioners might have amended
the Petition to specifically request a writ directed at the
referral of this bill. They did not do so. We have held that
the writ cannot be any more specific than the petition. State
ex rel. Pacific Am. Fi8heries v. Darwin, 81 Wash. 1, 12, 142
P. 441 (1914). Without a request in the petition for a specific
writ directed to prohibit the Secretary of State from certify
ing E2SHB 2319 to the ballot, we will not, on our own, craft
such a remedy.
Furthermore, the only officer with any duty under E2SHB
2319 and section 13 of Initiative 601 is the Secretary of
State. Nevertheless, the Petitioners are seeking a writ di
rected at four state officers, compelling compliance with the
constitution. As stated above, we will not issue such a broad
and indefinite order.
[17] The ambiguities surrounding E2SHB 2319 and sec-
tion 13 further reveal the impropriety of review at this time.
The grounds on which the Legislature is referring the bill
are not clear. Section 911 of E2SHB 2319 refers the bill -lin
accordance with Article II, section 1 of the state Constitu-
tion, as amended, and the laws adopted to facilitate the
operation thereof ... ". Ex. D, at 201. Referring a bill to the
voters is a constitutional power of the Legislature, and we
will not interfere with that power. The referral then con-
tains the proviso of 'Iunless section 13, chapter 2, Laws of
1994 [Initiative 601], has been declared invalid or otherwise
enjoined or stayed by a court of competent jurisdiction." Ex.
D, at 201. The Petitioners do not address the validity of such _


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424 WALKER v. MUNRO
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Aug. 1994
a conditional referral and we are unclear as to its effect on
a writ of mandamus.
Another ambiguity is that the tax provisions ofE2SHB
2319 are not currently effective, but will only go into effect
on July 1, 1995. Sections 901, 902 and 903 of E2SHB 2319
remove the July 1, 1995, time limit for certain taxes to
expire, thereby extending the taxes indefinitely. Section 904
removes a time limit on the tax of cigarettes and increases
the amount of tax. Sections 905 through 907 make changes
to the tax on carbonated beverages and syrup. Sections 904
to 908 do not take effect until July 1, 1995. It is not clear
what effect Initiative 601 has on a bill currently paased, but
which raises taxes as of July 1, 1995. Legislation paased now,
raising taxes in the future, may be conceived of as a way to
raise taxes in the future, without then subjecting the legisla-
tion to a super majority requirement, as would a tax bill
passed after July 1, 1995. It is unclear whether this is a
permissible method to avoid the strictures ofInitiative 601.
[18] Finally, a writ directed to E2SHB 2319 and section
13 would not bring the rest of the Petitioners' claims before
the court. Petitioners state that declaratory and injunctive
relief should be granted as incidental to a writ of manda-
mus and quote the following pasaage: "If any part of the
relief to which the petitioner is entitled is by writ of
mandamus the court will tryout all incidental questions
in the mandamus proceeding." State ex ral. Gillette v.
Clausen, 44 Wash. 437, 443, 87 P. 498 (1906). Petitioners
are reading this statement incorrectly and out of context.
An examination of Clausen shows that the above comment
refers to questions incidental to the specific issue subject to
the mandamus proceeding. This statement is followed by a
discussion of how facts may be controverted, a trial may be
had on the issues of fact raised, and damages and costs
may be awarded. The court was simply explaining that
complete relief may be granted in a mandamus pro-
ceeding, even though it is an extraordinary remedy.
The point was that a mandamus proceeding has all the ele-
ments of a civil action. Clausen, at 443. The statement does
not stand for the proposition that if the Petitioners have
Aug. 1994 WALKER v. MUNRO 425
124 Wn.2d 402,879 P.2d 920
a proper action for a writ of mandamus, other matters may
also be resolved, where those matters are not part of the
issue to be remedied by mandamus. If a matter is subject
to a writ of mandamus, then a declaration of the validity
of the law regarding that specific matter or injunctive
relief may also issue, but only as to the issue involved in
the mandamus action. One issue properly before the court
does not carry with it any number of other issues which
would otherwise be dismissed for lack of an essential ele-
ment.
Therefore, even if mandamus were granted as to E2SHB
2319 and section 13, this court could not reach other, unre-
lated issues, where thoso issues would not be subject to a
mandamus actio.n, but are simply co.ntained in the same act.
Section 13 does not involve the super majority requirement,
but only voter referral. E2SHB 2319 passed with a simple
majo.rity. Because consideration of a referral under section
13 does not implicate the Petitioners' major contentions
regarding the super majority requirement, we could only
give an advisory opinion as to. this portion of the action. We
will not do so. Washington Beaut.'Y College, Inc. u. Ruse, 194
,Wash. 160, 164,80 P.2d 403 (1938).
In sum, the referral of one bill under section 13, a bill
which passed by a simple majority, is not enough to grant a
writ directed at the four state officers named and not enough
to. reach most of the SUbstance of the Petitioners' claims. The
Petitioners only summarily argue that E2SHB 2319 is re-
ferred pursuant to. section 13, and make that argument in
conjunction with the specious argument that three other
bills are subject to section 13. Out of 10 briefs and over 200
pages of briefing, the discussion of this bill is no more than
a handful of lines in a few briefs, and no. mention cf the bill
is made in the Petitioners' Reply Brief, despite the lengthy
arguments on the motion to. dismiss made in the opposing
parties' briefs. This is far too slim a reed on which to. hang
major challenges to the entirety of an initiative, most of
which is not yet in effect. The Petitioners have filed no
amended petition asking for relief directed specifically at the
referral of E2SHB 2319. We are not even sure that the


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426 WALKER v, MUNRO Aug, 1994
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referral is pursuant to section 13. Thus, we will not enter-
tain this entire action on the basis of E2SHB 2319 and sec-
tion 13 of Initiative 601.
'I'his original action is improperly before this court on ap-
plication for a writ of mandamus and further, is not justicia-
ble at this time. We dismiss the action.
ANDERSEN, C.J., and DOLLIVER, DURHAM, SMITH, GUY, and
MADSEN, JJ., concur.
UrrER, J. (dissenting) - This case presents several issues
which, if resolved, would not only provide essential guidance
to legislators whose current decisions are heavily dependent
on the viability of Initiative 601, but would assist the govern-
ment and public in understanding how and if an initiative
can amend the state constitution. I, therefore, cannot agree
with the majority's failure to address the merits of this case.
To restart this case at a later date would develop no new
facts necessary to decide this issue and wastes judicial re-
sources.
The Petitioners seek a writ of mandamus, barring five
state officials from engaging in various activities mandated
by Initiative 601, on the basis certain provisions of the ini
tiative are unconstitutional. Specifically, the Petitioners
challenge portions of sections 13, 8, 4, and 3 of Initiative 601
as unconstitutional. Based on binding legal authority and
acknowledgement of the broad overriding import of the is-
sues presented, I would review the merits of each of these
challenges.
My foremost disagreement with the majority is over its
dismissal of Petitioners' challenge to section 13 of the initia-
tive. The majority's dismissal of this claim is raised sua
sponte, is premised on two untenable grounds, and fails to
apply the ordinary test of justiciability.
Section 13 requires the State to certify any bills which
contain changes to the tax structure to the general ballot for
approval by a majority of the voters:
Aug, 1994 WALKER v. MUNRO 427
124 Wn.2d 402, 879 P.2d 920
the state may raise existing taxes, impose new taxes as autho-
rized by law, or make revenue-neutral tax shifts only with ap-
proval of a majority of the voters at a November general elec-
tion.
(Italics mine.) Initiative 601, 13(1). The Petitioners allege
this provision violates Const. art. 2, 1(b)1 as well as Const.
art. 7, V
Even assuming the issue of justiciability was properly
raised,S I cannot agree with the majority. The majority ad-
vances, in essence, two reasons for dismissing the claim,
First, it concludes the claim is not yet justiciable mainly
because it argues three of four bills mentioned by the
Petitioners as falling within the ambit of section 13 do not
actually fall within the scope of sel!tion 13 and because the
fourth bill contains ambiguities. Second, the majority ap-
pears to conclude that because the Petitioners have failed to
request a writ specifically directed at any bill or state
official, this court. is without the authority to craft so specific
a remedy.
Neither premise is supportable, First, the status and sub-
stance of the four bills are inapposite to the issue presented
here. 'rhe real issue is: Should section 13 - triggering imme-
diate and direct obligations on Ralph Munro, burdening
taxpayers who financially support Munro's office and the
lQmat, art. 2, l(b) provides: "The second powel' reserved by the people is the
referendum, and it may be ordered on any act, hill, law, or any part thereof passed
by the legislature, except such laws as may be necessary for the Immediate preser-
vation of the public peace, health or safety, support of the state government and its
existing public institutions, either by petition signed by the required percentage of
the legal voters, or by the legislature as other bills are enacted, , ....
200n8t, art, 7, 1 provides in l'eievant portion: "The power of taxation shull never
be suspended, Bunendered or contracted away".
31 note my strenuous objection to the mn.jorlty's decision to raise the issue of
justiciability sua sponte. First, Respondents do not contest justiciability of this claim
in their briefs, See Br, of Resp'ts, at 42-49 (only challenging claims relating to sec-
tions 8, 4, and 3), and Reply Br. of Rasp'ta, at 67 (deacl'ibing section 13 as "al'suably
ripe for review", "currently control[l!ng] the procedure fol' the enactment of" a bill
and standing "[i]n contrast" to those sections of the initiative not in effect until July
I, 1995). Moreover, the facts of this case, evidencing current and momentous conse-
quences of failing to address the merits of'the Petitioners' section 13 claim, conflict
with the majority's decision to raise the issue of justiciability sua sponte.


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428 WALKERv. MUNRO Aug. 1994
124 Wn.2d 402, 879 P.2d 920
operation of elections, and impeding the work of legisla-
tors who are currently functioning under the effect of sec-
tion 13 - be reviewed? The answer to this question is yes,
irrespective of the status or substance of the bills discussed
by the Petitioners.
Even if the substance of the bills subject to section 13 were
germane to the determination whether a challenge to sec-
tion 13 of Initiative 601 is justiciable, the reasons given by
the majority for finding a lack of justiciability are unpersua-
sive. The majority notes that because three of the four bills
go into effect without voter referral, unless a court declares
referral is required under Initiative 601, they do not fall
within the ambit of section 13. As a point of fact, only two
of the four bills, SSB 6307 and ESHB 2326, contain a provi.
sion which indicates voter referral is unnecessary unless a
judicial declaration to the contrary is issued. One of the
remaining two bills, EHB 2670, may be subject to the
requirement of voter referralj4 and the other, E2SHB 2319,
is subject to voter referral and thus supports justiciability of
Petitioners' section 13 claim. -
Ignoring EHB 2670, the majority charges that because
E2SHB 2319 is lIambiguous", Petitioners' section 13 claim is
not yet justiciable. Its claim of ambiguity is unfounded. One
alleged ambiguity is the fact the tax measures of E2SHB do
not become effective until July 1, 1995. As noted, the fact
the tax provisions of E2SHB 2319 do not go into effect until
July 1, 1995, is inapposite to the justiciability of Section 13.
That section of the initiative triggers immediate and direct
obligations on Munro, burdens taxpayers who financially
support Munro's office and the process of elections, and
burdens the legislators who are currently operating under
the effect of section 13.
The other alleged ambiguity is quite curious in the context
of the majority's overall opinion. According to the major-
-----------------.-.---
4Petitioners argue the proposed increase in the amount of the principal residence
tax exemption for qualifying individuals (effectively reducing their taxes) will have
the inevitable effect of raising tnxos for others, and therefore represents a revenue
IlAutral tax: shift which must be subject to voter referral.
Aug. 1994 WALKER v. MUNRO 429
124 Wn.2d 402, 879 P.2d 920
ity, the presence of a provision which stipulates the bill
will be refel'red to the general population unless a court
declares Initiative 601 invalid renders E28HB 2319 am-
biguous. The majority remarks just a few pages earlier
that other bills, which become effective without voter
referral unless a court declares referral would be necessary
to comply with Initiative 601, should be interpreted as be-
ing effective without voter approval since there is no alle-
gation the alternative procedure has been triggered. See
majority, at 422. Thus, according to the majority, in the
absence of an allegation an alternative enactment proce-
dure has been triggered by a specified event, the original
procedure stipulated by the statute governs. The majority's
claim E2SHB 2319 is ambiguous by virtue of the existence
of a conditional referral provision, therefore, is, by the
majority's own reasoning, insupportable.
The majority's contention the Petitioners have failed to
request a writ with adequate specificity is similarly indefen-
sible. The assertion contradicts legal authority as well as the
record. The majority writes: "Without a request in the Peti-
tion for a specific writ directed to prohibIt the Secretary of
State from certifying E2SHB 2319 to the ballot, we will not,
on our own, craft such a remedy". Majority, at 423. The rec-
ord contradicts the assertion the request is not sufficiently
specific. In the original petition, the Petitioners requested a
' ~ w r i t of mandamus . . . to prohibit [Respondents] from
implementing and enforcing Initiative 601". Pet. for Writ of
Mandamus and for Declaratory J. and Inj. Relief, at 1-2. The
Respondents include Munro. One of Munro's obligations
under Initiative 601 is to refer bills falling within the ambit
of section 13 to the voters. In addition, in their brief,
Petitioners state: Hin the case of the measures recently
enacted by the Legislature in its 1994 session, Respondent
Munro must be directed not to certify any of them to the
ballot .. ,". Br. of Pet'rs, at 42.
Moreover, the legal authority underlying its assertion the
Petitioners do not seek relief with adequate specificity does
not control the resolution of the issues raised by this case. In


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430 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
State ex rel. Pacific Am. Fisheries v. Darwin, 81 Wash. 1,
142 P. 441 (1914), this court noted the petitioners:
do not ask for the performance of any specific act. The most
they ask is that this court define the duties of the fish commis-
sioner and compel him to perform them as thus defined. But, as
we have attempted to show, this is not the province of any
court, much less the province of a court of revisory and appel-
late jurisdiction.
Pacific Am. Fisheries, at 12. In contrast, Petitioners here do
not seek judicial definition of the scope of the Respondents'
duties, but rather a writ enjoining state officials from engag-
ing in the specific actions mandated 'by Initiative 601. More-
over, whereas the court in Pacific Am. Fisheries expressly
noted the case "present[ed] no unusual or extraordinary
conditions", Pacific Am. Fisheries, at 13, the case before this
court affects all citizens of this state in a current, far-
reaching, and profound manner, thereby reflecting an un-
usual and extraordinary circumstance which deserves imme-
diate judicial attention.
The majority also neglects to apply the general test of
justiciability. For purposes of declaratory judgment actions,
the following must generally exist:
(1) . . . an actual, present and existing dispute, or the mature
seeds of one, as distinguished from a possible, dormant, hypo-
thetical, speculative, or moot disagreement, (2) between parties
having genuine and opposing interests, (3) which involves inter-
ests that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determina-
tion of which will be final and conclusive.
Nollette u. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359
(1990) (quoting Diversified Indus. Dev. Corp. v. Ripley, 82
Wn.2d 811, 815, 514 P.2d J.37 (1973)). The majority's failure
to apply this test explicitly results in its consequent failure
to reach the proper conclusion Petitioners' section 13 claim
satisfies the test. An actual dispute exists since section 13
has already been enacted and imposes immediate obligations
on Secretary of State Munro, including the obligation to
certify bills to the public. Clark Cy. Sheriff v. Department
Aug. 1994 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
431
of Social & Health Servs., 95 Wn.2d 445,626 P.2d 6 (1981)
(writs of mandamus may be directed toward future acts).&
Second, at least some of the parties have genuine and op-
posing interests. The state officials, including Munro, have a
genuine interest in upholding the constitutionality of section
13 and certifying bills subject to it for a vote by the public;
and the Petitioners on the other hand have a genuine inter-
est in preventing the expenditure of state resources on
certifying bills to the public and taking a public vote if the
authority pursuant to which such actions are demanded is
void.
Third, the interests of at least some of the parties are
direct and substantial. Munro's interest is direct and sub-
stantial since he is the individual who must certify bills pur-
suant to section 13. The taxpayer Petitioners have direct and
substantial interests in the expenditure of state resources.
The legislator Petitioners have direct and substantial inter-
ests in abandoning their current approach toward the intro-
duction and enactment of legislation, an approach which
they claim is currently premised on unconstitutional de-
mands. Representative Appelwick's affidavit reflects that
"[t]he requirement of submission of revenue enhancement
measures to public vote has had a chilling effect on taking
legislative action which would otherwise have proceeded in
the normal course". Decl. of Appelwick (Facts Ex. N), at 2.
Finally, a judicial determination would be conclusive
because it would either permit the section to stand as is,
relieving legislators and the public from the uncertainty
around the parameters of section 13 of Initiative 601, or
conclusively void the section, rendering unconstitutional
referrals of bills to the public as well as unconstitutional
lIThe majority contends Clark Cy. Sheriff was premised in part on the fact the
official against whom the mandate was directed had engaged in infringing behavior
on many occasions in the past. See majority, at 408. However, the holding was
simply that because a precise statutory duty existed, because the writ could be
wOI'ded specifically. and because the command to act did not vary according to cir-
cumstances, a writ was appropriate. The same circumstances exist here .


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..
432 WALKER v. MUNRO
124 Wn.2d 402, 879 P.2d 920
Aug. 1994
restrictions on the Legislature's power to tax no longer
necessary.
The Petitioners' section 13 claim is also justiciable under
a second important test. Under appropriate circumstances,
this court has employed a "broad overriding public import"
test of justiciability to reach the merits of various issues
which are not otherwise justiciable. See, e.g. Seattle v. State,
100 Wn.2d 232, 668 P.2d 1266 (1983); Citizens Coun. Against
Crime v. Bjork, 84 Wn.2d 891, 529 P.2d 1072 (1975); Hunt
arner v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952). Under this
test, a court may, in its discretion, analyze a question not
otherwise properly before the court where:
. . . the question is one of great public interest and has been
brought to the court's attention in the action where it is
adequately briefed and argued, and where it appears that an
opinion of the court would be beneficial to the public and to the
other branches of the government. . ..
State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d
175,178,492 P.2d 1012 (1972); Seattle Sch. Dist. 1 v. State,
90 Wn.2d 476,585 P.2d 71 (1978). The majority attempts to
distinguish away a whole line of cases supporting this prin
ciple. However, the cases collectively stand for the proposi-
tion that, under appropriate circumstances, this court may
exercise its discretion in favor of reaching an issue which is
not otherwise justiciable. If Distilled Spirits and other cases
like it are indeed anomalous as the majority suggests, such
anomalous nature in no way renders the authority nonbind-
ing. Rather, the anomalous nature of such cases character-
izes the legal precedent as authority to be used in anoma-
lous situations demanding immediate attention for the
benefit of the public such as the one currently before the
court.
The Petitioners' section 13 claim is based on a law which
is already in effect, involves the expenditure of state
resources on certifying bills and placing them on a statewide
ballot, and has been briefed extEmsively by the parties, inter-
venors, and amici. Moreover, a conclusive resolution would be
extremely beneficial to the public and to officials of the
Aug. 1994 WALKER v. MUNRO 433
124 Wn.2d 402, 879 P.2d 920
other branches of government, including the Attorney
General, the Secretary of State, the Speaker of the House,
the President of the Senate, and the State Treasurer. Ac
cordingly, I would review this claim not only pursuant to
the 4-part test of justiciability but also pursuant to this
court's discretion to reviews claims of broad overriding
public import.
Because of the vast public interest at stake and pursuant
to the broad overriding public import test, I would also
review Petitioners' claims involving sections 8, 4, and 3. Sec-
tion 8 provides:
No fee may increase in any fiscal year by a percentage in
excess of the fiscal growth factor for that fiscal year without
prior legislative approval.
The Petitioners claim this provision violates Const. art. 2,
37 which provides "No act shall ever be revised or
amended by mere reference to its title, but the act revised or
the section amended shall be set forth at full length".
Petitioners' section 8 claim is based on a provision of the
initiative which is already enacted and currently in effect.
In addition, the claim implicates the state coffers as well as
services for the citizenry of this state, and has been briefed
extensively by the parties, intervenors, and amici. I disagree
with the majority's suggestion the Petitioners should have
"analyzed" each amended statute individually. The allega-
tion is simple and needs no specific tlanalysis". Finally,
because the security and reliability of budgetary planning as
well as other legislative decisions would be enhanced, a
conclusive resolution would be extremely beneficial to the
public and other branches of the government.
Sections 4 and 3 of the initiative require approval by two
thirds of the members of each house of the Legislature
before various measures may be taken. Petitioners claim the
super-majority requirements of these two sections violate
Const. art. 2, l(b) (see footnote 1), Const. art. 2, 22,6 and
6(Jonst. art. 2, 22 provides: "No bill shall become a Jaw unless o ~ its final pas-
sage the vote be taken by yeas and nays, the names of the membel's voting


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434 WALKER v. MUNRO Aug. 1994
124 Wn.2d 402, 879 P.2d 920
Const. art. 7. 1 (see footnote 2). 'l'he public benefit to
securing a prompt and determinative decision on the con-
stitutionality of sections 4 and 3 is enormous. The claim is
one of great public interest because it involves allegations
of improper limitations on the appropriation and use of
state coffers. The claims based on both sections have. been
extensively briefed by the parties, intervenors, and amici.
Finally I an opinion would be extremely beneficial to both
the public and to other branches of government. Because
legislators are representatives who are paid by the public
to further its collective interests and who must currently
introduce and take positions on legislation which will im-
minently be subject to a super-majority requirement, the
provisions have a current and allegedly deleterious effect
on legislation being proposed.. I take issue with the majori-
ty's claim It(i]t is possible that acts which are deemed to
fall within section 4(1) will pass by two-thirds of the votes
and so this greater voting requirement will have no real
effect". Majority, at 413. The legislator Petitioners have
claimed the law has already had a Itchilling effect" on the
nature and substance of legislation proposed. There is
therefore no need to also show that a piece of proposed
legislation has failed the super-majority requirement. In
addition, the security and reliability of budgetary planning
as well as other legislative decisions would be greatly
enhanced by an opinion from this court. In particular, it
would be enormously helpful to Brian Ebersole and Joel
Pritchard who Petiti.oners allege face a conflict between
Const. art. 2, 32 and Const. art. 2, 22 on the one hand,
and sections 3 and 4 of the initiative on the other hand.
In sum, I cannot agree with the majority's decision to
avoid the merits of Petitioners' challenge to section 13 of the
initiative. Nor can I agree with the majority's decision with
respect to the challenges to sections 8, 4, and 3 which deci-
sion fails to recognize the broad overriding import of the is-
sues presented and the fact the initiative may be OPlratmg
for and against the same be entered on the journal of each house, and a majority
of the members elected to each house be !'ecol'ded thal'eOIl as voting in its favo!'."
Sept. 1994 EV ANS v. THOMPSON
124 Wn.2d 435, 879 P.2d 938
435
as an impermissible departure from our time-tempered
methods of amending the constitution.
JOHNSON, J., concurs with UrrER, J.
[No. 60186-1. En Bane, September 1, 1994.]
DIANE EVANS, Individually and as Personal Representative,
ET AL, Petitioners, v. ROBERT J. THOMPSON, ET AL,
Respondents.
[1] Industrial Insurance - Third Person Action - Public
Policy. ROW 51.24 reflects the Legislature's strong policy in
favor of injured workers' actions against third parties.
[21 Industrial Insurance - Third Person Action - Dual Per
sona Doctrine - Landowner. When a worker is injured on
land owned by a person who ia also an owner of a closely held
corporation that employs the worker, whether the pereon 9S a
landowner is a separate legal entity from the person as the
owner of the corporation-employer, so that the person ie not
protected by the corporation-employer's immunity under the
Industrial Insurance Act for a breach of the person'e duties as a
landowner. is an issue of faet.
[3] Industrial Insurance - Third Person Action - Co-Workers
- Test - Burden of Proof, A person claiming immunity from
suit as a coemployee of tho injured plaintiff under ROW
51.24.030(1) has the burden of establishini that the person (1)
was in the same employ as the plaintiff and (2) wae acting in the
scope and course of the person's employment at the time the
injury occurred.
[4] Industrial Insurance - Third Pel'f'lOn Action - Co-Workers
- Officers and Directors. For purposes of industrial insurance
immunity granted eoemployees of an injured worker CReW
51.24.030(1)), officers and directors of a corporate employer of the
worker do not necessarily and as a matter of law qualify as "co-
employees".
DOLLIVER, J., ANDERSEN, c'J., and DURHAM and MADSEN, JJ., dis-
sent by separate opinion.

Page 155
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FILED
OCT 2 1 ZOl1
THOMAS R. FAlLQUIST
SPOKANE COUNTY CLERc
SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
10 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
11 and DOUGLAS TURNER
No. 11-2-03051-7
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioners,
v.
SPOKANE POLICE DEPARTMENT, and
CITY OF SPOKANE,
Respondents.
RESPONDENTS' REPLY BRIEF
REGARDING THEIR MOTION TO
DISMISS
I. INTRODUCTION.
The respondents have filed a motion to dismiss the petition for writ of
mandamus. On October 11, 2011, the petitioners filed their "Response to: Motion to
Dismiss Petition for Writ of Mandamus and Respondents' Memorandum of
Authorities in Support of Motion to Dismiss Petition for Writ of Mandamus." This brief
constitutes the respondents' reply to petitioners' memorandum.
RESPONDENTS' REPLY BRIEF
REGARDING THEIR MOTION TO
DISMISS -1
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane,VVA 99201-3326
(509) 625-6225
FAX (509) 6256277

Page 156
.-----------;------- ----
1 II. ARGUMENT.
2
The petitioners, appearing pro se, have clearly identified and argued their
3
moral, ethical, political and philosophical interests on the subject of abortion. They
4
5
raise interesting questions about the definition of human life. However, they have not
6
presented legal authority to rebut the respondents' motion to dismiss the petition for
7 mandamus. They have not established standing; they merely, as their petition
8
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10
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13
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20
21
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28
asserted, discussed the generalities of the societal debate about abortion. Similarly,
they have not produced any law that provides the authority for this court to issue a
writ of mandamus to compel the City or its police department to investigate what the
petitioners consider to be a crime. The petitioners are unable to distinguish or rebut
the clear authority set forth in the respondents' motion to dismiss.
Accordingly, the respondents' motion to dismiss the petition for writ of
mandamus should be granted.
DATED this 21
st
day of October, 2011.
RESPONDENTS' REPLY BRIEF
REGARDING THEIR MOTION TO
DISMISS - 2
N. Treppiedi, WSBA
tant City Attorney
rney for Respondents
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 992013326
(509) 625-6225
FAX (509) 625-6277
------------------ ---------------------

Page 157
1
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4
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DECLARATION OF SERVICE
I declare, under penalty of perjury, that on the 21 st day of 2011, I
caused a true and correct copy of the foregoing "RESPONDENTS' REPLY BRIEF
REGARDING THEIR MOTION TO DISMISS," to be delivered to the parties below in
6 the manner noted:
7
8
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10
11
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Lawrence Cronin
6716 East Big Meadows Road
Chattaroy, WA 99003
Email: countrycronin@juno.com
Virginia Cronin
6716 East Big Meadows Road
Chattaroy, WA 99003
Email: countrvcronin@iuno.com
Richard Hanson
6716 East Big Meadows Road
Chattaroy, WA 99003
Email: iowankid@hotmail.com
Michael Walters
6716 East Big Meadows Road
Chattaroy. WA 99003
Email: waltersmh@comcast.net
Douglas Turner
6716 East Big Meadows Road
Chattaroy. WA 99003
Email: dturner.sos@gmail.com
RESPONDENTS' REPLY BRIEF
REGARDING THEIR MOTION TO
DISMISS - 3
[X] VIA EMAIL
[X] VIA U.S. MAIL
[] VIA OVERNIGHT SERVICE
[] VIA HAND DELIVERY
[X] VIA EMAIL
[X] VIA U.S. MAIL
[] VIA OVERNIGHT SERVICE
[] VIA HAND DELIVERY
[X] VIA EMAIL
[X] VIA U.S. MAIL
[] VIA OVERNIGHT SERVICE
[] VIA HAND DELIVERY
[X] VIA EMAIL
[X] VIA U.S. MAIL
[] VIA OVERNIGHT SERVICE
[] VIA HAND DELIVERY
[X] VIA EMAIL
[X] VIA U.S. MAIL
[] VIA OVERNIGHT SERVICE
[] VIA HAND DELIVERY
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 6256277

Page 158
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FILED
'OfT 28 Z011
'fl'IQMNJ fl. ,I'AIo),41!llfa...
sltOlt-o o u ~ et!:nl'-
SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
10 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
11 and DOUGLAS TURNER
No. 11-2-03051-7
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioners,
v.
SPOKANE POLICE DEPARTMENT, and
CITY OF SPOKANE,
Respondents.
ORDER GRANTING RESPONDENTS'
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS
The Respondents moved the court for an .order dismissing the Petition for Writ
of Mandamus. The Petitioners sought to have the writ issued. The matter was heard
upon proper notice on October 28, 2011. The Respondents were represented by
counsel; the Petitioners appeared personally, pro se.
Having received the oral argument and briefing of the parties, the court finds
good cause to grant the Respondents' motion to dismiss the petition for the writ of
ORDER GRANTING RESPONDENTS'
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS - 1
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 159
1 mandamus. The Petitioners did not have standing to seek the relief requested, and
2
this court does not have a basis under Washington law to issue the writ requested.
3
It is hereby ORDERED, ADJUDGED AND DECREED that the petition for a
4
writ of mandamus is dismissed, with prejudiced.
5
6
DATED this 2<6 day of October, 2011.
7
8
9
JUDGE
10 Presented by:
MARYANN C. MOREN
11
12
13
14
15
16
17
18
19
20
21
cco N. Treppieai, W
ssistant City Attorne
Attorney for Respondents
Petitioner
Richard Hanson
Petitioner
,.
22

24
25
26
27
28
Petitioner
ORDER GRANTING RESPONDENTS'
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS - 2
Virginia Cronin
Petitioner

Michael Walters
Petitioner
Howard F. Delaney, City Attorney
OFFICE OF THE CITY ATTORNEY
5
th
Floor Municipal Building
Spokane, WA 99201-3326
(509) 625-6225
FAX (509) 625-6277

Page 160
FILED
NOV 18 2011
R. FALLQUIST
COUNTY CLERK
SUPERIOR COURT OF WASHINGTON, COUNTY OF SPOKANE
LAWRENCE CRONIN, VIRGINIA CRONIN
RICHARD HANSON, MICHAEL WALTERS
DOUGLAS TURNER
Petitioners,
vs.
SPOKANE POLICE DEPARTMENT,
CITY OF SPOKANE
Respondents.
NO. 11-2-03051-7
NOTICE OF APPEAL
(NACA)
Notice is hereby given that Petitioners: Lawrence Cronin. Virginia Cronin. Michael Walters.
Douglas Turner and Richard Hanson. hereby appeal to and seek review by the Court of Appeals,
Division III of the State of Washington, of the Order Granting Respondents' Motion to Dismiss
Petition for Writ of Mandamus. entered on October 28
th
, 2011.
Attached is a copy of the order. Dated this If Nay of November, 2011.
ApJle!.lants' Names, Signatures and Address:
'.
Virginia Cronin

Michael Walters
Ll
Richard Hanson
Address: 6716 E. Big Meadows Rd., Chattaroy, WA 99003
NOTICE OF APPEAL TO COURT OF APPEALS
/
Respondent's Name and Address:
City of Spokane! Spokane Police
Office of the City Attorney
808 W. Spokane Falls Blvd.
5
th
Floor, Municipal Building
Spokane,WA 99201

Page 161
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COpy
ORIGINAl. FILED
THOMAS A. fALlOUIST
SPOK.&NE coumv CLERK
SUPERIOR COURT. STATE OF WASHINGTON, COUNTY OF SPOKANE
10 LAWRENCE CRONIN, VIRGINIA CRONIN,
RICHARD HANSON, MICHAEL WALTERS,
11 . and DOUGLAS TURNER No. 11-2-03051-7
12
13
14
v.
Petitioners,
ORDER GRANTING RESPONDENTS'
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS
15 . SPOKANE POLICE DEPARTMENT. and
16' CITY OF SPOKANE,
Res . ndents.
17
18 The Respondents moved the court for an order dismissing the Petition for Writ
19 . of Mandamus. The Petitioners sought to have the writ issued. The matter was heard
20
upon proper notice on October 28, 2011. The Respondents were represented by
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Having received the oral argument and briefing of the parties, the court finds
24 . good cause to grant the Respondents' motion to dismiss the petition for the writ of
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ORDER GRANTING RESPONOENTS'- city
MOTION TO DISMISS PETITION FOR OFFICE I
,.. Floot" MuniCIpal BUilding I
WRIT OF MANDAMUS - 1 SpoIIane, WA. 9920t-3326 I.,
(509) 625-6225
I
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Page 162

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1 mandamus. The Petitioners did not have standing to seek the relief requested, and
2, this oourt does not have a basis under Washington law to issue the writ requested.
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It is hereby ORDERED, ADJUDGED AND DECREED that the petition for a
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writ of mandamus is dismissed, with prejudiced.
5
DATED this RR +h-day of October, 2011.
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B
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10.
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occo N. Treppiedi, UJf:1iHA
13 Assistant City Attorney
Attorney for Respondents
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1.6
1. 7 Lawrence Cronin
Petitioner
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/s{
Richard Hanson
Petitioner
Isf
23 Douglas Tamer
. Petitioner
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2S
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ORDER GRANTING RESPONDENTS'
MOTION TO DISMISS PETITION FOR
WRIT OF MANDAMUS - 2
hi t MARYANN C. MORENO
JUDGE
. /s/
Virginia Cronin
Petitioner
Is; (
Michael Walters
Petitioner
Howard F. Detaney, City AttOrney
OFRCE OF THE CI1Y ATTORNEY
S- Floor Municipal Building
Spokane, WA 992013326
(509) 825-6225
FAX (509) 825-8277
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