Board of Trustees of Employees' Retirement System v. Kenworthy

Bullard, Judge,

concurring specially.

I join in the opinion of the majority that the consolidated appeal of these cases must be dismissed for lack of a justiciable controversy. I do so in the face of great temptation to reach the substantive question raised in this appeal by crossing the threshold requirement of justiciability upon arguments of judicial economy and public necessity. While such arguments are meritorious in many instances, and at first glance, are most assuredly alluring in the present appeal, to succumb to them under the facts of these actions would be to set this court upon an irresponsible and potentially perilous path. It is true that other jurisdictions have recognized a “public interest” exception to a firm standard of justiciability. See Arrington v. State, ex rel. Parsons, 422 S2d 759 (Ala. 1982); State ex rel. McLeod v. McInnis, 295 SE2d 633 (S.C. 1982); Seattle School Dist. No. 1 v. State, 585 P2d 71 (Wash. 1978); yet, a careful reading of these decisions reveals the uniform reluctance to relax the requirement of real and immediate controversy and the courts resort to any slackening of the requirement only in instances in which issues raised are unquestionably of constitutional mágnitude and are involving matters that are strictly “publici juris,” that is, matters in which no one citizen has any special interest other than that which is common to citizens in general. Neither of these circumstances can be credibly argued to exist in the present actions. Nor under the facts in these cases, do I find compelling or justified as a basis for substantive determination, the often laudatory rationale of judicial efficiency or economy if such saving is to be achieved at the expense of due process. By its opinion today, the majority refuses to so readily erode the mandate of justiciable controversy and to so transform itself into an advisory body, and in *559this opinion, I do not hesitate to concur.