(dissenting) — The majority, while recognizing courts have the authority to modify or abolish the action for alienation of a spouse's affections, declines to do so and defers to the legislature to make whatever change may be needed. Deference by the courts to the legislature is proper in some fields, particularly in the exercise of the police power to accomplish economic regulation where the legislative fact-finding process is uniquely suited to that task. Aetna Life Ins. Co. v. Washington Life & Disability Ins. *322Guar. Ass'n, 83 Wn.2d 523, 534, 520 P.2d 162 (1974). An overly broad deference to the legislature, however, assumes they have had the opportunity to reflect upon all areas of law needing reform and have consciously chosen not to act in those fields where no action is taken. This does not accurately reflect the reality for the modern legislature. Institutional limitations on legislatures now exist such that only the most compelling needs may be acted upon. The expectation, unfortunately, is that pressures of time on legislatures will increase, not decrease, and their ability to act as a law-reforming body will become even more limited in the future.
The need for law to change, however, is a constant factor. " [Flexibility is necessary to enable the law to adapt itself to social change. As a society alters, so do its needs, and a serviceable legal system must be able in its development to take account of new social, political and economic requirements." (Footnote omitted.) J. Salmond, Jurisprudence 65 (12th ed. 1966). While restraint in the exercise of judicial power is essential to stability, a realistic use of that power to change outmoded rules is necessary to prevent law from becoming a collection of rules that have no relevance to present conditions. "Courts refusing to overrule precedents outright are virtually forced to accomplish reform by devising a labyrinth of rules with dubious and unpredictable implications." R. Aldisert, The Judicial Process 837 (1976).
Law is a process to be shared by courts and legislatures, with a need, however, for a realistic understanding of the strengths and weaknesses of each body in its performance of that role. The time constraints existing on the legislature, and the fact that the rule to be changed is one made by the courts initially, make it entirely proper for this court to examine the need for change in the common-law action for alienation of a spouse's affections. The Court of Appeals in Wyman v. Wallace, 15 Wn. App. 395, 549 P.2d 71 (1976), has stated the reasons for abolition of the action. (1) The underlying assumptions to justify the doctrine are fictitious. Viable, contented marriages are not broken up by *323an outsider. (2) The judicial process is inept in its ability to police the often vicious out-of-court settlements. (3) The opportunity for blackmail is great as the mere bringing of an action often ruins the defendant's reputation. (4) There are no helpful standards for assessment of damages. (5) The successful plaintiff succeeds in compelling what appears to be a forced sale of the spouse's affections. Its judgment and analysis has been noted with approval in a recent comment, which is the only scholarly review of the case. Comment, Action for Alienation of Affections of a Spouse Abolished in Washington, 12 Gonzaga L. Rev. 545 (1977).
The majority emphasizes the dearth of evidence in the record to support the appellate court's analysis. However, the case is equally devoid of evidence justifying retention of the cause of action. It remains the court's duty to seek justice and reason in our interpretation of the common law.
The Court of Appeals concluded, at page 401, "To us the action diminishes human dignity. It inflicts pain and humiliation upon the innocent, monetary damages are either inadequate or punitive, and the action does not prevent human misconduct itself. In our judgment, the interests which the action seeks to protect are not protected by its existence, and the harm it engenders far outweighs any reasons for its continuance."
I agree and would affirm the judgment.
Brachtenbach, Horowitz, and Dolliver, JJ., concur with Utter, J.
Reconsideration granted April 12, 1979.